Are the Guantanamo war crimes courts now doomed?

Demonstrators dressed as Guantanamo Bay detainees urge President Obama to fulfill his pledge to close the military prison and end indefinite detention at a rally outside the White House on May 23, 2014.

Lyle Denniston, the National Constitution Center’s adviser on constitutional literacy, explains how a recent court ruling based on Article I of the Constitution has created a huge problem for the war crimes system at Guantanamo.

The statements at issue:

“Whether or not you agree with the result of today’s decision, the D.C. Circuit [Court] has done no one any favors — not the government, which will still be terribly uncertain as to which cases it can and can’t bring; not the defendants, for obvious reasons; not the public; and, most importantly, not the commissions — the fragility of which is only exacerbated by today’s decision…. In other words, for commissions, the legal legitimacy of which was already in limbo, today’s decision only makes it worse insofar as it opens the door to additional years’ worth of litigation over the basic question of which offenses the commissions can try.”

– Steve Vladeck, an American University law professor, in a column July 14 on the national security law website “Just Security,” reacting to a federal appeals court decision limiting the powers of the U.S. military commissions set up at Guantanamo Bay to try terrorism cases.

“The Obama Administration should read today’s decision as advice to bring all future terrorism cases in U.S. federal civilian courts, and to press Congress to allow the current commission cases to be transferred to U.S. soil for legitimate trials. Federal courts have completed nearly 500 cases related to international terrorism since 9/11…. Meanwhile, military commissions have convicted only eight individuals since 9/11 and two of those convictions have been overturned on appeal.”

– Daphne Eviatar, senior counsel to Human Rights First, an international advocacy group, in a statement July 14 reacting to the same appeals court decision.

We checked the Constitution, and…

In the modern American constitutional era, with a stronger sense of respect for human rights, it is extremely difficult to set up a legal regime where the U.S. Constitution would not apply at all. A Constitution-free zone is exactly what the American government tried to create, six weeks after the Sept. 11, 2001, terrorist attacks on U.S. soil, when military commissions were set up at the Navy base at Guantanamo Bay, Cuba, to conduct war crimes trials.

By putting that military-run system of prosecution beyond U.S. borders, the government explicitly intended to move ahead with terrorism trials without any oversight by American courts. That has not happened.

Through a series of decisions, mainly by the Supreme Court, the Guantanamo terrorism court experiment was brought under limited constitutional supervision. It began in 2008, when the Justices declared that foreign nationals held at Guantanamo Bay have a constitutional right to file challenges in U.S. civilian courts to force the government to justify their detention. That was based on the phrase in the Constitution that bars the government from suspending “the writ of habeas corpus” except in the rarest of perilous times. The right to pursue habeas, seeking freedom from imprisonment, was one of the few individual rights guaranteed by the original Constitution, before there was a Bill of Rights.

The results have been mixed, but the habeas right did come alive at Guantanamo, and scores of detainees have since gained their freedom, due at least in part to the pressure that constitutional review put on the Pentagon to reduce the detainee population.

But, for the past six years, it had seemed that that was as far as the Constitution would go at Guantanamo. Government lawyers argued, both at the military proceedings in Cuba and in U.S. civilian courts on the mainland, that the prisoners had no other constitutional rights. Many in Congress made the same arguments.

Even without more guaranteed rights for the detainees, however, the military proceedings have repeatedly been bogged down, mainly in procedural missteps and bureaucratic mismanagement. Even the premier prosecution assigned to such a tribunal – the case of five individuals facing an array of charges for planning and carrying out the 9/11 attacks themselves – has run on for years, seemingly unable to advance. The case was pushed into the commission system after a political uproar frustrated a plan to try them in federal civilian court in New York City.

Meanwhile, Congress repeatedly has shut off any plans the government might have to bring any Guantanamo prisoners to the mainland for civilian trials.

But now, six years after the Constitution first made its appearance on the Guantanamo scene, there is suddenly a new constitutional right for detainees. The U.S. Circuit Court of Appeals for the District of Columbia, ruling in the case of a Yemeni national who had acted as the personal propagandist for al Qaeda leader Osama bin Laden, declared for the first time that the Constitution’s ex post facto clause did apply to the war crimes trials. Applying that clause to the Yemeni’s case, the Circuit Court threw out two of his convictions and raised deep doubt about the third.

That clause is another of the few rights-guaranteeing provisions of the original Constitution. Article I says simply: “No ex post facto law shall be passed.” Over time, that has been interpreted in the courts to mean that no one can be prosecuted for a crime for conduct that was not a crime when it happened. In other words, crimes cannot be created after the fact.

That suddenly has created a huge problem for the war crimes system at Guantanamo. The federal law that governs what crimes Congress wanted prosecuted by the war crimes courts is the Military Commissions Act of 2006 (enacted after the Supreme Court struck down an earlier version of military commission law). Because all of the detainees facing potential prosecution in those courts are charged with crimes for conduct that occurred before 2006 – mostly, even before 2001 – there now is deep uncertainty about what the commissions can try from here on, and it may take years to sort that out.

In the worst-case scenario for military prosecutors, they may be left with very few war crimes that can be traced back before 2001. Any crime that was added specifically in response to the 9/11 attacks may be at least in doubt, if not ruled out.

At the same time, the government – in both the executive branch and Congress – remains firmly committed to keeping a separate system of war crimes prosecutions, no matter what difficulty has befallen that system. The frustrations within that system, though, seem sure to build further, making harder to defend its continued existence.

Philadelphia’s National Constitution Center is the first and only nonprofit, nonpartisan institution devoted to the most powerful vision of freedom ever expressed: the U.S. Constitution. Constitution Daily, the Center’s blog, offers smart commentary and conversation about constitutional issues in the news, drawing insights from America’s history and a variety of expert contributors.