Wednesday, November 3, 2021

Guantanamo jury rebukes U.S. government

The military commissions at Guantanamo have been controversial since their inception. One conservative commentator, President Nixon's former speechwriter William Safire, called them kangaroo courts in the months after September 11. Mr. Safire also thought they would turn "back the clock on all advances in military justice, through three wars, in the past half-century." 

In 2003, Captain (Retired) Kevin Berry, a former Judge Advocate from the Coast Guard, took a more measured critique in the Army Lawyer. He nonetheless worried that the military commissions were an unnecessary departure from the procedures adopted by the U.C.M.J. after WWII, and that we risked sacrificing American ideals of fairness on the altar of national security.

20-years later, seven out of eight military members who sentenced Majid Khan, "a suburban Baltimore high school graduate turned Qaeda courier" at Guantanamo, agreed with these critiques. These seven military members signed their names to a letter seeking clemency for Mr. Khan, after they had sentenced him to the mandatory minimum. In their letter, according to Carol Rosenberg of the New York Times, they "condemned the legal framework that held Mr. Khan without charge for nine years and denied him access to a lawyer for the first four and half as 'complete disregard for the foundational concepts upon which the Constitution was founded' and 'an affront to American values and concept of justice.'"

Their letter also reproached the techniques used to extract information from Mr. Khan, finding them unhelpful to developing useful intelligence, and akin to the same "torture performed by the most abusive regimes in modern history."  

This author was hard pressed to find contemporary justifications for military commissions that argued they would take 20-years to adjudge guilt and sentence enemy combatants, and they would result in panel members finding the system an affront to American justice.

[Edit: An earlier version of this post erroneously stated the jurors identified themselves in their letter. I regret the error.]

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