President Obama may lack the nerve to stare down Liz Cheney or Bibi Netanyahu, but no one can deny that our commander in chief has the guts to take on a child soldier. Come August, a military commission in Guantánamo will try Omar Khadr, a Canadian national captured outside Kabul in 2002, when he was just 15 years old. This will be only the third Gitmo trial and the Obama administration’s first, and there won’t be anything kinder and gentler about it.
But give our government credit for breaking new ground: no nation has tried a child soldier for war crimes since World War II, and the decision to prosecute Khadr has drawn protests from UNICEF, headed by a former U.S. national security adviser, as well as every major human-rights group. The audacity doesn’t stop there: charges against Khadr include “murder in violation of the rules of war,” a newly minted war crime novel to the history of armed conflict. Battlefield deaths do not usually result in murder trials for prisoners of war. But according to the Department of Defense, Omar Khadr is no POW. He’s a non-uniformed, “unprivileged belligerent.” In the euphemistic lingo of Gitmo, Khadr is not even a prisoner, just a “detainee” who has been awaiting trial for the past eight years.
This kind of court action would have made great copy under Cheney and Bush, noisome proof of their barbarity. Now everyone except the Right’s usual panic-merchants is sick of Guantánamo and wishes it had closed, as Obama promised, by the end of 2009. But that deadline has passed, and Gitmo will surely be open next year too. Several reporters told me they had to beg their editors to be sent down to cover the Khadr story.
Anyone expecting to witness eye-popping tableaux of Rumsfeldian cruelty at Gitmo will be disappointed. It’s a military base like many others, except instead of the nearby base town with obligatory pawn shop, strip club, and Korean restaurant, you find an impermeable barrier sealing base dwellers and visitors inside. Overall, it’s not a bad deployment: soldiers can at least get a beer off duty, the snorkeling’s good, and the roads are free of IEDs. Given the paucity of lurid local color, scribblers who take the military flight—a leased Delta aircraft from Andrews Air Force Base—have been reduced to soliloquizing about Guantanamo’s McDonald’s and the banality of evil amid the French fries.
Gitmo’s population continues to trickle away, to a point. Over 600 prisoners have been let go, and of the 50 habeas petitions for release filed since the Boumediene decision in 2008, 36 have been granted. Were these really “the worst of the worst”? Hardly. Still, the Obama administration has announced that it will continue to hold some 45 detainees indefinitely without charges, one of George W. Bush’s most radical policies, now zealously defended by a smoother, smarter team of Democratic lawyers. This is exactly the kind of lawlessness that Harold Koh, a human-rights icon, used to condemn from his bully pulpit as dean of Yale Law. Now, as legal adviser to the Department of State, he’s tasked with justifying indefinite detention.
Of the roughly 180 remaining prisoners, Omar Khadr is the youngest. The 23-year-old is now in the midst of pretrial suppression hearings to determine whether his confession of throwing a grenade that killed a Special Forces medic is admissible as evidence. Few would deny that Khadr was tortured—one interrogator testified that he first laid eyes on the youth hooded and chained to the walls of his cell, standing with his shackled arms extended at head level. The only questions are how much torture, exactly what kind, for how long, and whether it contaminates the confession that Khadr later retracted. The first round of hearings afforded a clear vantage into the legal black hole that Guantanamo very much remains.
The Obama administration has striven to paper over the abyss with a layer of legality. There are new, improved rules for the military commissions, signed by the secretary of defense the night before the hearings began. Alas, they continue to fall short in core areas of juridical fairness. There is no right to a speedy trial, no pretrial investigation to weed out weak cases, and the defense’s requests for witnesses must go through the prosecution. There is no credit for pretrial detention—now nearly a decade for many prisoners—and no right of equal access to witnesses and evidence. Freshly invented war crimes like “material support for terrorism,” retroactively applied, violate the fundamental juridical principle ofnulla poena sine lege, no crime without a prospective law.
The greatest flaw is structural: the interference of the “Convening Authority”—the politically appointed head of the commissions—into the prosecutions has been documented again and again. Brig. Gen. Thomas Hartmann, former legal adviser to the Convening Authority, was so blatant in his attempts to secure convictions that he was banned from any involvement in three separate trials for his “undue command influence.” One former chief prosecutor at Guantanamo has said that Hartmann pushed hard for the Khadr case because he thought it would be “sexy, the kind of case the public’s going to get energized about.” Such micromanaging did not endear Hartmann to his colleagues: former deputy prison camps commander at Guantánamo Brig. Gen. Gregory Zanetti testified in 2008 that Hartmann’s conduct was “abusive, bullying and unprofessional … pretty much across the board.”
One might expect that a legal system thus rigged would greatly appeal to its prosecutors. Until now, one would be wrong. Half a dozen prosecutors have quit the commissions in disgust, most with blistering criticisms on their way out. Col. Morris Davis, former chief prosecutor of the commissions until October 2007, said that constant political pressure made full, fair, and open trials impossible: “What we are doing at Guantánamo is neither military nor justice.”
No less scathing is Lt. Col. Darrel Vandeveld, formerly lead prosecutor in another commissions case against a child soldier—a case that collapsed midway through, with the government dropping all charges. “It would be foolish to expect anything to come out of Guantánamo except decades of failure. There will be no justice there, and Obama has proved to be an almost unmitigated disaster,” he told me. After resigning from the commissions as a matter of ethical principle, Vandeveld was punished with a mandatory psychiatric evaluation and gratuitous hearings into his fitness for remaining in the Army, even though he had only four months remaining in his term of service. Vandeveld, who has deployed to Iraq, Afghanistan, and Bosnia, doubts very much that any more prosecutors will resign after his highly visible reprimand.
The new head of the prosecution team, Capt. John Murphy, told me proudly that morale has never been higher on his team. Half of the four lawyers looked young enough to have started law school long after 2001, and it is hard to imagine young attorneys quitting the commissions without established careers to fall back on.
This may spell the end to a golden chapter in JAG history: throughout the sordid drama of Guantanamo, the few glimmers of governmental integrity have come from the JAG corps’ dissent. They even earned that ultimate ethical accolade, the disapproval of John Yoo, who scolded the military lawyers for adhering to the rule of law in defiance of the “unitary executive authority” as embodied by torture buffs such as himself.
For its part, Team Obama’s main innovation has been to ban troublesome journalists from the base, a move Bush never dared. On May 6, toward the end of this round of hearings, the Joint Task Force abruptly barred four of the most knowledgeable reporters from returning to Gitmo, accusing them of violating an order that the identity of Omar Khadr’s primary interrogator be kept secret. It doesn’t matter that “Interrogator Number One,” convicted in a 2005 court martial for prisoner abuse at Bagram prison, had already been interviewed by one of these journalists two years ago and that his identity is available in the public record.
One of the banned journalists, Carol Rosenberg of McClatchy, was hounded last summer by a risible and quickly dismissed sexual harassment complaint made by Navy press officer Jeffrey Gordon. Rosenberg is the acknowledged dean of Gitmo journalists. Getting rid of her would be a singularly effective way for the Department of Defense to gain some control over Gitmo’s public image.
And that image remains pretty terrible, even if Camp X-Ray, the open-air cages that held orange jumpsuited detainees for four months in 2002, is now growing weeds. Camp Delta, the detention complex, is rather prosaic. Camp 5, for the least compliant prisoners, is a direct modular copy of a block from the federal prison in Terre Haute, Indiana; Camps 4 and 6, for the most compliant, of Lawanee Prison in Adrian, Michigan. Some detainees are able to take courses in Arabic, English, and art. And so what?
A prison doesn’t have to be an unremitting nightmare to threaten the rule of law. As the ACLU’s Ben Wizner puts it, “At this point, Guantánamo isn’t a place anymore, it’s a principle.” A normal-looking prison that just happens to hold people indefinitely without charge is a more insidious threat to the integrity of the legal system than Camp X-Ray ever was. For this reason, the ACLU does not see transporting the system to Thomson Correctional Facility in Illinois as any kind of progress.
Guantanamo, wherever it is located, runs the grave risk of normalization, a process already well underway. Over a few nights during the Khadr hearings, I read in my air-conditioned tent a law-review article by Prof. Adrian Vermeule, an up-and-comer at Harvard Law School. He proposes that legal black holes—the term was coined by a British law lord expressly for Guantánamo—are not only tolerable but necessary. Any attempt to fill them in with law would be “hopelessly utopian,” “quixotic” even. “Our Schmittian Administrative Law,” published last year in the Harvard Law Review, draws heavily on the work of Nazi jurist Carl Schmitt, lifelong opponent of the rule of law and liberal democracy. A chronic figure of fascination among lefty academics for the cold eye he cast on liberalism’s sacred myths, Schmitt’s ideas had always been held at a prophylactic distance.
No longer. Schmitt’s ready-made conceptual lexicon for political emergencies, non-state combatants, and the need for strident executive authority has proven irresistible to ambitious intellectuals in the revolving door between the federal government and the finer law schools. These tweedy immoralists urge us to relax our square-john commitment to the rule of law and embrace strong executive action. Surely the moralizing banalities of rule-of-law theorists are inadequate for the unique challenges of the post-9/11 global order, they tell us.
But after the events of the past decade, one would be on safer ground drawing the opposite conclusion about the rule of law’s value. Our government responded to 9/11 with extraordinary measures contemptuous of ordinary legality, and nearly every one of them has been catastrophic. From the conquest of Iraq to waterboarding to warrantless wiretapping to the military commissions of Guantánamo, these policies have been exorbitantly costly in blood, treasure, and national prestige. Nor is setting up a shambolic court to try a child soldier who was tortured in custody likely to solve anything. Has any part of our frenzied rejection of legal restraints improved national security?
Vermeule is correct to note that these black holes are likely to dilate rather than contract as an imperialist foreign policy strains our legal system, not only with the panic and fervor of war but with juridical conundrums of extraterritoriality, non-state belligerents, and geographically far-fetched definitions of self-defense. Already a new Guantánamo for indefinite detainees has opened up in Bagram, which will be much less accessible to media, nonprofit observers, and defense counsel.
Meanwhile, the rule of law will continue to suffer rough treatment at the hands of our best and brightest. The concept has been debunked by many postmodern academics as so much high-minded bourgeois blather and, more dangerously, derided by the neoconservative Right as a folktale for chuckleheads. But people in countries where violent lawlessness is rife see the rule of law as something more than rhetorical window dressing. From Colombia to Egypt to Italy to Guantánamo’s neighboring Cuba, citizens who risk their lives against the depredations of organized crime or authoritarian states routinely invoke the rule of law to give meaning to their acts of resistance. Yes, the rule of law may be an ideal—but it is not only an ideal.
Repairing legal black holes in America may start by shutting down Guantánamo, wherever the detention complex ultimately winds up, and radically rethinking our post-9/11 security policies. Indefinite detention in some nondescript prison with a few art classes doesn’t make for splashy headlines, but it marks the beginning of the end of the rule of law.
Chase Madar is a lawyer in New York.