"This is an issue of first impression for the military commissions, yet again," conceded the lead military prosecutor, addressing the military commission judge in the case of Noor Muhammed on Wednesday in a courtroom in Guantanamo Bay, Cuba.
Lt. Cmdr. Arthur Gaston of the U.S. Navy, the lead prosecutor, was arguing to Navy Capt. Moira Modzelewski, the judge, that it was up to her to decide if the detainee's former military defense counsel should continue to represent Noor, although the Army had assigned her to elsewhere. And really, he added, it was up to the Army, not the court, to make the final determination.
The military bureaucratic conundrum seemed to leave everyone in the courtroom - and in the observers' gallery, which was walled off by bullet-and-sound-proof glass -- scratching their heads. (Observers at this courtroom, which was built specially to try the 9/11 suspects, only get to hear the proceedings via an audio feed that transmits the sound after a several-minute time-delay.) Like many questions that arise in these military commission hearings, the answer to this one could not be found anywhere in the rules or the military commission precedent.
That's partly because the current military commissions, created by the Military Commissions Act of 2009 - have no rules. The military hasn't issued them yet. The now-outdated rules that governed the previous commission, created by a 2006 law, don't address this situation either. And there is almost no military commission precedent to speak of. After all, in the eight years since they were created, the military commissions have tried only three cases. Of those, only two detainees even put up a defense. Both have since been released from prison.
Throughout yesterday's hearing, if there was one thing that the prosecution, defense and judge could agree on, it was that there simply is no law to guide many of the situations that come up in the military commission cases of the Guantánamo detainees.
The lead civilian defense counsel, Howard Cabot, an experienced trial lawyer, kept citing precedent from the military court-martial cases and the rules of the Uniform Code of Military Justice, or UCMJ. But those are designed to govern cases involving U.S. servicemembers, not suspected terrorists. And except in the three cases already mentioned, suspected terrorists have always been charged and tried under federal criminal law and federal rules of criminal procedure, in civilian federal courts.
The lack of precedent and uncertainty about the constitutionality of the commissions themselves has made it virtually impossible to try these cases. It also leaves any future verdict vulnerable to challenge on appeal.
In Noor's case, as in many others, the government hasn't even established that the court has jurisdiction over him, because it has yet to prove he was a fighter for Al Qaeda or the Taliban. Even if it proves that he supported terrorists groups, Noor can later appeal on the ground that "conspiracy" and "material support" for terrorism aren't really war crimes, but instead are crimes in the federal criminal code that belong in civilian criminal court. And the government could be required to start his case all over again.
Setting aside the astonishing delay in the trial of Noor and the other Gitmo detainees, perhaps the best reason against trying them at Guantánamo Bay is that these trials are unlikely to lead to the sense of justice, finality and closure that Americans terrorized by the attacks of Sept. 11 want and deserve. More likely, as Noor's case illustrates, they'll lead to an endless round of drawn-out hearings and appeals, as lawyers fight over what the rules are or ought to be, each conceding, as they must, that there is no clear law to guide them.
That will only further delay justice - not only for the suspects indefinitely imprisoned at Gitmo, but for the victims of the acts of terrorism that they're accused of orchestrating.