GUANTÁNAMO BAY—August and September will be big months for the U.S. prosecutors at Guantánamo Bay. Three cases will be moving forward, the first to trial on Aug. 10, a second to pretrial hearings in early September, and a third likely to hearings sometime this fall. Three doesn't sound like many cases, but in context, the number is huge. In the eight previous years that the commissions have been open, they have prosecuted just four terrorism suspects -- none of them high-level al Qaeda operatives. Prosecutors are framing these coming months as proof that the military-tribunal model is working. Common sense, however, says it's not: Federal courts have tried 100 times as many accused terrorists during the same time frame, with far better results.
The summer's first "victory" for prosecutors came early this month, when a one-time cook and driver for Osama bin Laden pleaded guilty before a military commission. The defendant, a slight, 50-year-old Sudanese man named Ibrahim Ahmed Mahmoud al Qosi, was charged with conspiracy to commit terrorism and providing material support to a terrorist organization. Before he even left the courtroom, escorted by two military guards, the chief prosecutor approached his team with a congratulatory pat on the back. "The conviction validates the commission process and advances the hearings," the prosecutor, Navy Capt. John F. Murphy, said at a news conference immediately afterward.
Coming after months of bickering and uncertainty about whether and where to try Khalid Sheikh Mohammed and the other alleged 9/11 planners in U.S. federal courts, and controversy swirling over a decision to try an ill-treated child soldier by military commission in August, this was just the kind of clean win prosecutors sorely needed to make their case for the beleaguered military commissions.
Unfortunately, one guilty plea hardly validates their argument. If anything, the fact that "victories" like the Qosi trial are so few and far between is proof that the military commissions aren't working. The disparity between how many cases Guantánamo Bay has taken to trial and the record of U.S. federal courts -- already at a stark four vs. 400, respectively -- might soon become even worse. Two of those four are being appealed. The defendants argue they were convicted on charges other than war crimes and so shouldn't have been tried by the commissions. The appeals could drag on for years.
When it comes to the three Guantánamo cases likely to make headlines in the coming months -- Omar Khadr, Noor Uthman Muhammed, and Mohammed Kamin -- the military commissions' trials are likely to prove similarly muddy and prolonged. There is no question that the cases on the docket would pose a challenge to even a well-established system of justice. But in a system created from scratch, in a remote locale that requires all participants to be flown in and out for short visits, problems that would be minor irritants in a U.S. court become major obstacles. The result can be months or years of delay.
Even beyond the human rights questions about due process guarantees and the military commissions' unfair rules, the Guantánamo tribunals have not shown themselves up to the task of prosecuting even low-level terrorism suspects. Does it really make sense to leave the prosecution of the alleged 9/11 planners -- the men accused of the worst terrorist act on U.S. soil ever -- in the hands of an untested system with an abysmal track record? Anyone who has seen the military commissions in action would say no -- and a review of the upcoming cases suggest why this is true.