The Least Worst Venue

The Obama administration's plan to resume military commission trials for Guantánamo detainees isn't as terrible as civil liberties advocates think.

"Trial by military commission." The phrase warms the heart of some and chills the spine of others. To supporters, commissions are a legitimate and traditional tool for providing criminal justice in the context of war, however unorthodox or unfamiliar the contours of that war might be. They are, on this view, precisely what is needed to bring closure to the otherwise interminable saga of Guantánamo Bay, where 173 detainees remain in military custody. To critics, however, military commissions are kangaroo courts that cannot produce credible verdicts, fit only for prosecuting widely recognized war crimes committed in the course of undisputed armed conflicts.

Framed in this way, the debate over commissions has raged off and on since President George W. Bush established the first post-9/11 commission system by military order in November 2001. And according to Charlie Savage's account in Thursday's New York Times and Dafna Linzer's detailed elaboration for ProPublica, we are in for yet another round in the very near future: Defense Secretary Robert Gates is reportedly poised to lift the moratorium on new military trials for Guantánamo detainees, a freeze that has been in place since President Barack Obama's inauguration in 2009.

Should the left despair? Should the right rejoice? Neither. The commissions are neither the monstrosities their critics sometimes suggest nor the solution their supporters imagine.

Nor is this latest development much of a surprise, for that matter. The Obama administration has supported some form of commission proceeding for some cases from the outset. The administration supported and signed the Military Commissions Act of 2009, for example, and Obama himself very clearly endorsed the use of commissions to prosecute some -- though certainly not all -- detainees during his famous speech on Guantánamo and detention policy at the National Archives on May 21, 2009. Later that year, the Justice and Defense departments agreed on a protocol for determining whether Guantánamo defendants slated for prosecution should be tried in civilian courts or commissions. That November, the administration released a list of five Guantánamo detainees to be prosecuted by a commission in accordance with those guidelines.

So why were Thursday's stories newsworthy? Because it appears that the commission leg of this two-track system now might be going forward by itself, even as the administration's efforts to bring detainees to trial in civilian courts seem to have all but ground to a halt. According to Linzer's story, administration officials previously had agreed to pursue new military and civilian prosecutions of Guantánamo detainees at the same time. As a result, the administration had held off on starting new cases in either system while it determined whether the civilian prosecution option would be viable (though two pending commission cases did proceed to the point of guilty pleas in the interim).

The aftermath of the prosecution of Ahmed Ghailani, an alleged al Qaeda conspirator captured in Pakistan in 2004 whose trial was the first test of applying the civilian process to a Guantánamo detainee, gave them an answer of sorts. On one hand, Ghailani actually was convicted on one count and likely will receive a lengthy sentence. But that conviction has been overshadowed to an extent by his acquittal on 284 other counts. Fairly or not, the near miss provoked a substantial political backlash against further reliance on civilian courts to prosecute detainees, an approach that had already become politically toxic in some quarters. Even prior to the verdict, the Democratic-controlled Congress had used its power of the purse to restrict the administration's ability to bring detainees into the United States and subsequently passed a law that wholly prohibits the use of Defense Department funds to transport them. As a result, the civilian prosecution option appears for the time being to be dead in the water, though Attorney General Eric Holder gamely asserted Thursday that all options remain on the table for detainees linked to the 9/11 attacks.

But this is hardly an unequivocal victory or defeat for either side of the Guantánamo debate. To be sure, the kangaroo-court critique civil liberties advocates level at the military commissions at one point had considerable merit. Bush established the first post-9/11 commissions without explicit congressional authorization, and the system was riddled with problems: Among other things, it permitted non-unanimous verdicts, no particular restraint on the admission of testimony obtained through coercion (or worse), and no role for the civilian federal judiciary or even military judges. But that was then. After the Supreme Court's 2006 decision in Hamdan v. Rumsfeld determined that commissions of this kind could not be established merely by presidential order, Congress stepped in to explicitly authorize a new commission system, one with substantially greater safeguards.

When Congress revisited the system in 2009's Military Commissions Act, it pushed the commission system still closer to conformity with the standards associated with courts-martial and civilian criminal trials. In today's system, appeals ultimately run to the D.C. Circuit Court of Appeals and beyond to the Supreme Court if necessary. Military judges preside at the trials. Ex parte evidence -- evidence that is shown to the fact-finder but not the defendant -- is not permitted. Verdicts must be unanimous.* And most significantly, not only are the fruits of torture and cruel treatment precluded from admission, but so too are any statements that were made on any involuntary basis. (The sole exception is the rare circumstance in which a prosecutor might want to introduce statements made on the battlefield at the time of capture.)

The major difference between the new commission proceedings and civilian ones is that hearsay is admissible, at least in theory. This no longer amounts to a clear opportunity to seek admission of coerced statements, but it does at least open the door to the admission of statements made by people whom the defendant has no opportunity to cross-examine, a position deeply at odds with the norms of civilian criminal trials and courts-martial. And as Savage reports, this could prove particularly important in cases like that of Abd al-Rahim al-Nashiri, described by the 9/11 Commission as having orchestrated the attacks in Yemen on the USS The Sullivans, the USS Cole, and the French tanker Limburg. So there is certainly room for legitimate criticism of the commissions, but not nearly so much as is commonly assumed.

The commissions' most zealous supporters, meanwhile, greatly overstate the utility of military trials over the civilian alternative. First, there is no reason at all to believe that the officers who serve as fact-finders in commission proceedings are more likely to convict than civilian jurors. Indeed, one might expect the opposite to be true based on the actual results of the five cases that have gone forward in the commission system thus far. But the truth, of course, is that this is an entirely unknowable proposition; it depends on who gets impaneled in particular cases.

Furthermore, given the new rules regarding admission of coerced testimony, there is no reason to think that dodgy interrogation statements are more likely to be admitted in commission proceedings than in civilian ones. And one should not assume that defendants in commission proceedings will not, in the end, receive the benefit of constitutional rights associated with criminal trials. To be sure, the courts have not yet held that such rights apply or determined how exactly they apply in commissions versus civilian courts. But the issue is pending, and any commission verdict obtained in a trial by running afoul of these rights will risk being thrown out on appeal down the road.

The biggest outstanding question about the new commissions, however, is whether they are actually useful for the sorts of crimes that we most need military commissions for. Arguably the most important charges that are likely to come before a commission are the crimes of conspiracy, unlawful killing in war, and providing material support. Versions of each of these offenses are well established in civilian criminal law; whether they can legitimately be tried in a military commission, however, has long been the subject of hot dispute, and if the answer turns out to be no, the usefulness of the commissions will be much reduced to say the least.

The good news is that this issue already had been teed up for resolution by the appellate courts. The bad news is that we have been waiting for much more than a year for the Court of Military Commission Review to give us an answer, and even after its gets around to doing so the question almost certainly must go on to the D.C. Circuit Court of Appeals and, perhaps, to the Supreme Court. In short, it will be years before we know whether these charges are viable in commissions.

One final point is worth considering: The decision to reopen military commissions, however symbolically significant, may have little impact on the fate of the bulk of the Guantánamo population. Many if not most of the detainees there were never destined for either track of the two-track system, after all, but instead were meant to be either released outright or, for many dozens held in continued military detention in an extension of the status quo. Congress has made it nigh impossible to transfer anyone out of Guantánamo without a court order from the ongoing habeas corpus proceedings through which federal judges are vetting individual military detention decisions. It is thus no longer clear that acquittal in a commission proceeding -- or even completing a sentence imposed by a commission -- would actually result in a detainee's release. In the final analysis, for most if not all the detainees, it is the emerging law of military detention being crafted by the judiciary in the habeas cases that truly matters, notwithstanding the deep political resonance of the commissions issue.

*Correction: This article originally stated incorrectly that verdicts in the new military commissions must be unanimous. In fact, verdicts require two-thirds majority votes except in death penalty cases, as in prior iterations. Commission remain criticizable on this ground.



The Global Threat to Press Freedom

Why access to information is the most important human rights issue of our time.

With Hu Jintao on a state visit to Washington this week, there has been much public comment on the need for U.S. President Barack Obama to stress to his Chinese counterpart how important it is for China to improve its record on human rights and commitment to greater political freedom. In their joint press conference on Jan. 19, Obama took pains to show his concern, telling reporters, "I have been very candid with President Hu about these issues." For his part, Hu accepted the need for progress and dialogue but insisted that China would follow its own development path.

But their statements -- and the media's reporting of the visit -- fall short by treating "human rights" as an isolated issue. Human rights are important, to be sure, but the present conversation is too vague and, for many Americans, not immediately relevant to our own lives. The very practical point it misses is that the outside world's access to information about China, and therefore global economic interests, are compromised by denials of free speech and free press in foreign lands.

It is understandable that those of us who have grown up with an unmatched level of freedom may believe that censorship in other countries is morally wrong, but does not directly affect us as citizens in a democracy. But the fact is that globalization and new technology -- two of the defining developments of this era -- have fundamentally blurred the distinction between us and the rest of the world when it comes to free speech and free press.

Globalization is, of course, many things, but it is principally an economic phenomenon -- enabled by the opening of markets in countries across the world, driven by the quest for profits in business and finance, and facilitated by the lowering of barriers to trade and investment. Consistent with the nature of entrepreneurial activities, it is all moving with enormous and unprecedented speed. Suddenly, approximately half the revenues of the S&P 500 companies come from outside the United States, half of the debt of the U.S. government is held in foreign hands, and everyone seems to be betting on the Chinese consumer (along with those in India, Brazil, and elsewhere) for economic growth over the next decade.

These forces and events are transforming, or at least significantly affecting, the lives of just about everyone everywhere. Although there are many benefits to humanity from this course of modern civilization, there are clearly issues to be addressed, choices to be made. We will undoubtedly continue to debate the details of various policy responses, but no one can plausibly question that massive problems like global recession or climate change require collective public action, just as similar problems did on a national scale in the 20th century.

Above all else we need accurate information, smart ideas, and a means of discussion to accompany these forces of globalization. To that purpose we need to build up the very successful institutions we have developed over time to perform those specific functions. One thinks, first and foremost, of the press and universities, both of which are (at their best) dedicated to making a professional judgment about what is important for us to know and then providing us with that knowledge. We are, indeed, fortunate to have new technologies of communication ready to serve these needs. But we are confronted with the question of whether the new digital marketplace of ideas is capable of supporting the quality of information and civic discourse that is required to address the challenges we face.

It would be a serious mistake to think that the so-called "citizen journalists" -- important as they are to public debate -- can entirely replace large, professional institutions organized to report the news, any more than the rise of "citizen scholars" could duplicate the work of our best research universities. The benefits of scale, professionalism, and institutional support are significant when it comes to covering actions of governments or multinational corporations. As WikiLeaks has vividly illustrated, there is a very big difference between posting unedited diplomatic communications on a website and taking the time and judgment to provide context, insight, and, perhaps most compellingly, a sense of responsibility to both soldiers and sources around the world -- as trusted news organizations do every day.

It is also a mistake to think that the natural course of events will lead to greater and greater openness, that technology alone will overcome official censorship rather than become a tool for it, or that the accumulation of material wealth will result in greater tolerance and openness. As China's economic success demonstrates, the belief that robust free markets depend on democratic self-governance is being questioned and tested around the globe. And Americans' own experience with the First Amendment in the United States, which was played out over the course of the last century, suggests that we should not presume the outcome. Just last week, the NGO Freedom House reported that, on balance, democracy retreated worldwide in 2010 for the fifth year in a row.

What is called for here is a serious and comprehensive assessment of how we are going to get the information the world needs to maximize the benefits and gains of globalization. This is the right moment to undertake that assessment, not only because we're still in the early stages of globalization and already have problems to address, but also because this is obviously a moment when the press as we've known it is undergoing radical retrenchment. It is by now yesterday's news that the success of the Internet has come at a cost to the business model of the "old media," with the major consequence that newsrooms have been slashed and foreign bureaus and correspondents decimated among our once great newspapers and network news divisions. Yet the need for coverage of the globe is greater today than a decade ago.

A comprehensive assessment and plan of action would need to focus on at least three major areas of concern: how to overcome the varieties of censorship around the world that are steadily undermining the value of freedom of speech and press everywhere, how to build up the capacity of the press, and how to bring about more open borders that ensure journalists can report from and to other countries.

The first area requiring close attention is the impact of global censorship on inhibiting the flow of information. It is important to recognize that censorship anywhere is effectively censorship everywhere. This is a corollary to the fact that, in an increasingly integrated and interdependent world, no country is an island in any of its actions. When Mexico's drug dealers make reporting too dangerous, when Russian journalists are attacked and beaten, or when China censors the Internet and prosecutes those who speak out, everyone's ability to obtain the information we need about developments in these countries is diminished. Given the growth of public issues with global dimensions, we must think about creating a global public forum where these issues can be discussed and resolved.

Today, with the emergent global communications system (with 2 billion people connected through the Internet), all speech is instantly global. We are finding, however, that as our speech expands its reach it also transgresses local censorship laws and makes us vulnerable to civil actions and criminal prosecutions elsewhere. For example, in recent years executives of Google have been indicted in several jurisdictions around the world because of the offensive or allegedly defamatory content appearing on sites to which they link. Such actions will chill speech everywhere, which means that a much stronger international effort to resolve these differences about freedom of the press will have to occur in the years and decades ahead. The First Amendment community must become much more involved in these efforts than it currently is. It is no longer sensible to divide our attentions between free speech and press in the United States and human rights for the rest of the world. Now, everyone's freedoms are intermingled.

Second, any reasonable analysis of press capacity is almost certainly going to end up considering the role of public investment in the press. Despite this idea's broad acceptance among America's democratic allies, in the United States this is always a peculiar discussion, not unlike the debate about health care. The fact is that the press we have today is not the product of a pure free market, but of a very mixed system that has grown from a monopoly or oligopoly (certainly in the case of daily newspapers and television), with some government regulation (in the case of broadcasting), some indirect public support (in the form of favorable mailing rates), and some direct support (in the public broadcasting system domestically and programs like Voice of America globally). Yet many Americans, including journalists themselves, react to the idea of public investment as if it were a direct assault on freedom. There is, furthermore, general neglect of the encouraging experience of U.S. universities, which care about academic freedom as much as the press cares about editorial freedom and have for decades been the recipients of major public funding for research and, in the case of public universities, for general operations.

We also have the very obvious experience of the BBC, which has established itself across the globe as a credible voice of free press in countries that censor their own media -- and increasingly as Americans' source of information about the globe through its U.S. distribution on NPR, PBS, and cable. Whatever some choose to believe about such publicly funded journalism, the fact is that these essential tasks of fostering access to credible news reporting abroad and greater global insight at home are simply not being fulfilled in a serious way by the commercial news media.

The question -- especially in this era of budget austerity -- is not whether to make a greater public investment in a more robust capacity for global reporting, but rather how to invest the vast public funds that U.S. taxpayers already spend in a major undertaking that reflects the values and quality of American journalism.

My current vote would be for augmenting the funding for NPR and PBS to take on a greater and greater international role, both in reporting to the world (in different languages) and reporting back to the United States about the world. We need an American World Service, with an American journalistic character but on a scale more like the BBC. We already invest more than $750 million a year in the Broadcasting Board of Governors' services, such as the Voice of America and Radio Free Europe. We know from experience that such funds can be best invested in high-quality journalism and cultural programming reflecting the values of a free society.

Such an endeavor should not bound by the old Cold War division that legally prevented publicly funded international broadcasting from distribution to domestic audiences -- a prohibition that has effectively been rendered moot by both technology and contemporary realities. Americans certainly do not want government propaganda, but they do need both a credible voice and source of information about the world. The fact is that Russia Today, China's CCTV and Xinhua News, Qatar's Al Jazeera, and others are already competing aggressively in this new global media marketplace. As the New York Times reported recently in an article on a State Department program showing U.S. documentary films abroad, providing the world with forthright, independent reporting -- even about some of America's own challenges as a society -- is an effective advertisement for America's democratic values.

Lastly, Americans need to set an example of openness themselves by changing domestic policies that hinder journalists employed by foreign-owned news organizations from reporting freely within the United States. Just as Americans want U.S. news organizations to have the freedom to tell them what is going on in countries abroad, others around the world should have knowledge about the United States (and we should be able to see and read what their media are reporting). Special visa restrictions, accreditation policies, and limits on travel within the United States all interfere and conflict with the growing need to build an educated and informed population capable of supporting intelligent foreign policies and grappling with critical global issues. In this, Congress should take the lead and review all U.S. laws and policies that inhibit the foreign-owned press from working within the United States. One avenue forward would be to advance a policy of open borders with respect to a global free press or, in the language of Article 19 of the Universal Declaration of Human Rights -- which can with the proper interpretation become the First Amendment of the Global Public Forum over the course of this century -- freedom of speech and press "regardless of frontiers."

None of these items are simple to achieve given the hard economic, political, and legal challenges facing the press across the globe today. But if we are committed to both solving the complex challenges wrought by globalization and expanding civil society around the world, this is an obvious place for us to start.