Getting to Grips with Guantánamo II: Military Commissions & Law of War Detention

This post is by Kasey McCall-Smith: a lecturer in Public International Law and programme director for the LLM in Human Rights at Edinburgh Law School.

This post is the second in a series of blogs that chronicle the history and current state of play regarding the US rendition and detention programme in the immediate aftermath of 9/11. They were written during the author’s visit to Guantánamo Bay, Cuba, to observe military commission proceedings in the case of USA v. Khalid Shaikh Mohammad, et. al.  30 May – 3 June 2016, which is the initial phase of her project Getting to Grips with Guantánamo. Click here to read the first post in the series: ‘Rendition to the Caribbean’.

The military commission proceeding against the 9/11 five in the case of US v. Khalid Shaikh Mohammad, et. al. (KSM case) is viewed as having parallel purposes, bringing justice to the nation and victims’ families for the terrorist attacks of 9/11 and laying bare the flagrant torture campaign under the US Central Intelligence Agency’s (CIA) post-9/11 Detention and Interrogation Program (DIP). The KSM case stems from charges filed on 31 May 2011 against the five men charged with conspiracy, murder and destruction of property in violation of the law of war for the conception and facilitation of the 9/11 attacks which resulted in the deaths of close to 3000 people. The subsequent ‘war on terror’ launched by the Bush administration in the aftermath set in motion a ruthless anti-terrorism campaign by the CIA that has been acknowledged by the US government as comprising widespread use of torture in breach of both US domestic law and international law.

Pursuant to an Executive Order on 13 November 2001, the first version of the military commissions were established to try and punish any individuals apprehended as part of the investigations and military operations in response to the 9/11 attacks.  Ultimately, this system of commissions was abandoned following the US Supreme Court decision in Hamdan v. Rumsfeld, 548 US 557 (2006). Following Obama’s election and concomitant promises to close Guantánamo, a new framework for military commissions was established under the Military Commissions Act 2009. The MCA authorises the president to establish military commissions to try ‘alien unprivileged enemy belligerents’ for violations of the law of war and other offences (§948b(a)). The MCA is essentially designed to cover terrorist suspects rounded up from 2002-2008 in the DIP as it clearly sets out that it applies to persons for offenses before, on and after 11 September 2001. It is a mishmash of half-articulated military law, domestic law and international law, that, from observing the pre-trial phase, delivers incomplete responses to a range of procedural and substantive matters raised by both the prosecution and defense.

The MCA obviates some fundamental rules found in traditional US civilian and military courts, as well as rules that are shared by other common law jurisdictions. For example, a speedy trial is not guaranteed (§948b(d)(A)). This is clear from the fact that four years into the prosecution of the KSM case, the commission is tied up in pre-trial motions that look set to continue for several years. The MCA also outlines that no person tried under the Act may exercise a private right of action under the Geneva Conventions (§948b(e)) though this is an obligation to which the US assented upon its ratification and is generally read as essential to the constitutional protections of the US. These things aside (and others to be dealt with in subsequent posts), the MCA is the governing law. Therefore, the lawyers continue to navigate the MCA and supplement its gaps as best they can.

A key issue that pervades the proceedings is the issue of minimum standards for law of war detention. In the early days of the Bush administration and CIA DIP programme a great deal of attention was focused on the newly coined term ‘war on terror’. From the point of many international law academics, including myself, the use of ‘war’ was entirely inappropriate.  Its use was calculated to trigger a state of emergency that was enable the president to take extraordinary action without seeking approval by Congress.  The term was consistently used to justify persistently illegal actions by the Bush administration and the CIA. That ill-conceived terminology conundrum aside, it is accepted that the defendants in KSM, as well as defendants in other on-going proceedings, are held under the law of war. This means that no judge or superior officer has ordered their detention. As argued by counsel for Mr. al Baluchi, one of the five 9/11 defendants, if the defendants are held under the law of war, then they must also enjoy the protections of that same body of law. Particularly as the US has vowed to hold ‘enemy belligerents’ until the end of hostilities. With ‘terrorists’ as the objective of the misnamed ‘war’, this would effectuate indefinite detention, even without charge (more on this later).

The law of war is often used interchangeably with international humanitarian law or the law of armed conflict. Regardless of the term used, the body of law, particularly those rules outlined in the Geneva Conventions, sets out strict minimum standards relating to the detention, prosecution and return of individuals during an armed conflict, as well as a host of issues in between. Though somewhat variable, the laws apply whether the detainee is regular military, civilian or other designated categories of person. The law of war is defined by international law through a combination of treaty law and customary international law. Despite both Geneva standards and US domestic law guarantees on pre-trial detention of accused persons and incarcerated persons, law of war detainees at Guantánamo have thus far been deprived of minimum standard conditions. The failure to deliver on these minimum standards has often been linked to the US denial of the self-executing nature of the Geneva Conventions in US law, which reflects the dualist approach to international law by the US. This dualist approach has antagonised US relationships with other states in past cases, such as La Grand and Avena, and has mired much of the KSM case in laborious arguments over applicable laws.

Minimum standards set out by the Geneva Conventions for alien enemy combatants, the designation of the defendants in the KSM case, include standards that ensure the humane treatment of individuals held in law of war detention. These standards are supported by US law in the 2005 Detainee Treatment Act (42 U.S.C. §2000d(d)).  Standards include, among other things, prohibition of solitary confinement, notification of the family of the individual’s detention, reasonable communication with family members and friends (more on this later, too), reasonable medical attention, the ability to communicate with the outside world, minimum food provisions, no pre-trial punishment and no unduly harsh treatment. It is clear that many of these standards are habitually abrogated at Guantánamo, even without visiting the detention centre. For example, though some of the detainees held at Guantánamo, including some of the KSM defendants, have had been able to communicate with family members under very restricted, sometimes bizarre, terms, this privilege has been sporadic and variable rather than a minimum guarantee equally applicable to all detainees.

Defense counsel in the KSM case has asked for a full-access visit by the UN Special Rapporteur on Torture in order to determine the compliance of the detention facilities with applicable law. With any luck for the 80 men still held at the detention facility, particularly those at Camp 7, the judge will rule expeditiously on the motion. Thus far, the inability or unwillingness of the KSM judge to ensure access of counsel or independent investigators to access the secret Camp 7 facility, where approximately fourteen so-called ‘high value detainees’ are held, only further supports a conclusion that something is amiss. Echoing a widely repeated line from both the US and UK governments in response to discontent over breaches of privacy rights in the post-9/11 world, ‘if you have nothing to hide, you have nothing to fear.’