by Raha Wala Georgetown Fellow, Law and Security
The whispers began to die down as Noor Uthman Muhammed, a slender man with a graying beard, walked into the military commission court room. "Noor" - as the judge, defense, and prosecution call him - took a moment to survey the people in the court room before taking his seat at defense counsels' table. Having been detained at Guantánamo for over eight years now on allegations that he helped run a terrorist training camp, Noor believes his military commission trial will give him the chance to tell his side of the story and clear his name.
For now, though, Noor will have to wait. His hearing this past Tuesday involved oral arguments over fairly complex pre-trial motions that, while important, seem far removed from Noor's proverbial day in court. In fact, Noor's day in court - his actual trial - won't take place until February of 2011, meaning that he will have been in detention for almost nine years before he gets to hear and challenge the government's case against him. The delay has been attributed to a number of sources - the voluminous discovery requested by defense counsel, the obligatory pre-trial motions to dismiss, the classified nature of much of the evidence that's being offered against Noor. But if you step back and place Noor's case in context, if you really break Noor's case down to its essence, it becomes clear that trying Noor's case in a military commission is like trying to fit a square peg in a round hole; Noor's case is taking so long because it just doesn't properly fit the mold for a war crimes prosecution.
One reason Noor's case is a bad fit for a war crimes prosecution is that it's unclear whether a military commission can even exert jurisdiction over Noor for crimes that the government says he committed. Most of the criminal acts Noor allegedly committed took place from the mid-1990's to 2000, purportedly before the United States was at war with anyone. Yet the military commissions were originally created in response to the September 11th terrorist attacks to try individuals for war crimes, raising questions about whether the military commission even has jurisdiction to hear Noor's case. The crimes Noor allegedly committed - material support of terrorism and conspiracy - are not traditional law of war violations typically tried in military commissions. Moreover, attempts by Congress to codify material support and conspiracy as war crimes may very well be seen as imposing ex post facto punishment, with military commissions serving as a venue for trying individuals like Noor for "war crimes" that simply didn't exist at the time these alleged unlawful acts took place.
Similarly, Noor must be considered an "unprivileged enemy belligerent" for the military commission to assert jurisdiction over him. This means that the prosecution needs to show that Noor was unlawfully taking part in hostilities during an armed conflict. Yet, as was mentioned above, the United States was not at war in the 90's during Noor's alleged crimes. And Noor denies that he was affiliated with any armed forces, although the U.S. government claims he was providing support for a Taliban training camp. Even if the U.S. government's accusations are accurate, it's not clear that the Taliban was involved in any armed conflict during the time of Noor's alleged unlawful acts either. Thus the military judge has ordered a preliminary hearing - scheduled for the week of November 8th - to sort out these messy legal issues associated with Noor's status.
And the legal controversy in Noor's case does not stop there. In Noor's hearing on Tuesday, prosecution and defense counsel argued over whether it was unconstitutional for the military commissions to try only aliens suspected of terrorist activities - like Noor - and not citizens suspected of terrorist activities. As it happens, the Military Commissions Act of 2009 (MCA of 2009), which provides the legal framework for the current military commissions system, only allows jurisdiction to try alien so-called "unprivileged enemy belligerents." Thus, according to defense counsel in Noor's case, subjecting Noor to a military commission, with its subpar procedural protections, constitutes invidious discrimination against aliens that violates Noor's due process rights. Not surprisingly, the government argued that Noor doesn't have constitutional due process rights in Guantánamo, directly playing into the perception that Guantánamo is a system for second-class justice.
All of these threshold jurisdictional issues will have to be litigated before there will be justice in Noor's case, but this kind of litigation would not be necessary if Noor's case were tried in an Article III federal court. There is simply no question that Article III courts can exercise jurisdiction over terrorism cases like Noor's; terrorism-related acts have been crimes under the federal criminal code since at least the early 1990's and trying them in federal courts doesn't require threshold jurisdictional determinations related to the law of war. Moreover, because the federal criminal code doesn't discriminate based on nationality in terrorism cases, there are no questions about its constitutionality on this point. As a result, federal courts have a relatively successful track record, having handled cases against hundreds of suspected terrorists over the last decade, with a conviction rate of more than 90%. Military commissions, by contrast, have only four convictions to their name since September 11, 2001.
In addition to jurisdictional and other legal issues, there are practical problems with the military commissions system that raise questions about its ability to serve as a legitimate system of criminal justice. The prosecution is building its case against Noor in large part from eye witness testimony and reporting that is over 10 years old. Few, if any, of the prosecution's witnesses have been made available to defense counsel, and it has taken court orders to compel the prosecution to comply with basic discovery requests. Almost two years ago, Noor's case was dropped after Lt. Col. Darrel J. Vandeveld, a military commissions prosecutor, resigned over unethical discovery production procedures that unjustifiably denied defense counsel evidence essential to their clients' cases. Now, twenty months after new charges have been brought against Noor, he still knows very little about the evidence that is likely to be offered against him other than conclusory government assertions.
One thing that Noor's counsel does know is that the prosecution will be offering, in Noor's November hearing, evidence from the diaries of Abu Zubayda, a man the government claims was a high-level al Qaeda operative affiliated with Noor. Abu Zubayda was repeatedly tortured by government interrogators, raising the possibility that evidence obtained as a result of torture may be used against Noor. Although a provision in the MCA of 2009 prohibits the admission of statements obtained through torture, it remains unclear what the precise scope of this provision is. Indeed, just recently, in a pre-trial hearing in the military commission case of Omar Khadr - the first child soldier to be prosecuted since World War II - the trial judge ruled that evidence obtained after Khadr was threatened with gang rape and death could be admitted at trial. In Noor's case, it's unclear whether the government will offer evidence tainted by torture or cruel, inhumane, and degrading treatment, although the possibility has hovered over the proceedings since they begun over a year ago. What is clear is that the trial judge has planned evidence suppression hearings for January of 2011 to address precisely these kinds of issues. In the meantime, Noor's case - like many of the other military commission cases at Guantánamo - continues to raise questions about whether it makes sense to establish an untested, parallel system of justice for terrorism trials when time-tested Article III courts have competently handled these kinds of trials for over a decade now.