By Jonathan Hafetz
November 9, 2011
With their client facing trial in a military commission for his role in the 2000 USS Cole bombing, lawyers for Abd al-Rahim al-Nashiri have demanded the government answer this basic question: If al-Nashiri is acquitted, will he be released? Although the government refuses to say what it would do, it has made clear that it can continue to detain al-Nashiri regardless of the trial's outcome.
The defence's request, which the military commission is expected to consider this week, highlights the continuing contradictions of law and justice at Guantanamo.
The government's explanation for post-acquittal detention is as follows. It has authority under the 2001 Authorisation for Use of Military Force to detain members and supporters of al-Qaeda, the Taliban, or associated groups for the duration of the armed conflict with those groups (i.e., the conflict formerly known as the "global war on terror"). The government also has authority under separate legislation to try the same individuals for various war crimes, including for providing material support for terrorism. The two sources of authority, it argues, are distinct.
The government draws an analogy to German soldiers captured during World War II, who were held as prisoners of war in accordance with the Geneva Conventions and longstanding tradition. Their detention was considered non-punitive and lasted only until the end of the conflict. If, however, a German soldier had committed a war crime, for example by targeting civilians, he could have been prosecuted for violating the laws of war, held criminally responsible, and sentenced to a term of imprisonment lasting beyond the conflict (or even sentenced to death). Merely because a military court acquitted the soldier of the charges would not have invalidated his prisoner-of-war detention or required his immediate release.
This framework has intuitive appeal. But problems arise when it is applied to an amorphous and intergenerational conflict against terrorist organisations.
To begin with, war crimes trials are typically held after the conclusion of the conflict. The trial of major Nazi war criminals at Nuremburg did not occur until after World War II. Similarly, cases before the International Criminal Tribunal for the former Yugoslavia did not commence until after hostilities ceased.
One reason for holding trials after the war is that it is only after the fighting has stopped that countries are able to focus on accountability. Another reason, however, is that it gives the trials meaning by allowing states to impose punishment on the culpable in the form of continued incarceration. If, for example, former Bosnian Serb leader Radovan Karadzic could be detained regardless of the outcome of his war crimes trial at The Hague, that trial would lose its sense of purpose.
Trials have multiple goals. They not only give the accused his or her day in court, but also provide a way for the government to impose punishment legitimately and uphold shared social norms. Those goals are compromised when a trial proceeds under a "heads I win, tails you lose" rationale and the defendant remains incarcerated regardless of the result.
The nature of the war on terrorism, moreover, means that a defendant may be held for life even if acquitted. Rather than vindicating exercises of state power, such trials increase concerns about the illegitimacy of its use.
Post-acquittal detention highlights another paradox of Guantanamo. If al-Nashiri had to be released after a "not guilty" finding, it would undermine the government's argument for continuing to hold other prisoners without trial, especially the approximately 40 Guantanamo detainees whom the Obama administration says it will never prosecute because it lacks the evidence to convict them. It would mean, in other words, that only those accused of the most serious crimes, such as al-Nashiri or alleged 9/11 mastermind Khalid Sheikh Mohammed, get their day in court, while those less culpable languish in perpetual detention without ever being charged. Post-acquittal detention is thus necessary to sustain the coherence of a larger system of preventive detention, in which trials themselves are provided at the government's discretion.
Former Supreme Court Justice Robert H Jackson, who also served as the chief prosecutor of the major Nazi war criminals at Nuremburg, warned against "show trials" that fail to bring forth the facts and critically examine the evidence. "The ultimate principle," Jackson said, "is that you must put no man on trial under the forms of judicial proceedings if you are not willing to see him freed if not proven guilty".
Jackson may have been addressing the need to adhere to stringent requirements of proof and fair adjudication. But his remarks apply to any court that exists to ratify a predetermined result. No matter how much military commission procedures are improved - and they still fall short of American criminal justice standards - they will remain show trials if the accused can be jailed regardless of the verdict.
