Last month, just minutes into a pretrial hearing for the five men accused of plotting the Sept. 11 attacks, David Nevin, the lead defense attorney, asked the judge to stop the proceedings. His concern: A third party, possibly the CIA, might be listening to privileged conversations between the defense attorneys and their clients. “This is not something we made up,” Nevin told the judge. “This is a genuine concern that we have. And as officers of the court and as lawyers, we have to get to the bottom of it before we can go forward.”
Had the allegation been made in a federal court, it would have seemed, at best, a little paranoid. But in the military commissions at Guantanamo Bay, there is an oasis of space for such accusations. The special terrorist courts, which were originally set up by the Bush administration to deal with foreign prisoners accused of terrorism, have been fighting allegations of second-tier justice and double standards since their inception. The Supreme Court weighed in and found the Bush-era commissions unconstitutional. Congress has reformed the commissions twice — once in 2006 and again in 2009 — making them into a sort of hybrid of military courts and federal ones.
Even so, there is still a general sense that something is just not right with the courts at Guantanamo Bay. For most Americans, the specific problems are difficult to recall — something about rough interrogations, hearsay evidence and indefinite detention. The details have remained sketchy. Until now, that is, thanks to The Wall Street Journal’s Supreme Court reporter, Jess Bravin, whose new book anchors the criticisms in detailed facts. The Terror Courts is a comprehensive accounting of the creation of the commissions in the months after the 9/11 attacks. It is a book that pulls no punches. It names names. And, in so doing, it is a gutsy, finely wrought narrative that explains how a small group of Bush-era political appointees managed to develop a parallel justice system designed to ensure a specific outcome.
The ingredients that go into such a system are fairly straightforward, Bravin explains. Strip the defendants of rights. Have an administrator who is judge and jury. Be selective about the military-commission history on which the system is based — the Bush administration focused on one outlier case — and then make sure to exclude the military’s lawyers so that their fealty to the Uniformed Code of Military Justice doesn’t get the in the way of the mission.
The fix, Bravin reports, was in from the outset. The draft of the military commissions order in the month after 9/11 was just 1,800 words, and it “made no reference to basic due process,” he writes. “The only standard was that evidence hold ‘probative value to a reasonable person’… There was no requirement that any member of the commission be a lawyer. Instead lay officers from infantry, artillery, or other units would conduct a trial that could order a defendant executed.”
Consider the Pentagon’s general counsel at the time, William J. Haynes II, who oversaw the development of the post 9/11 military commissions. He was a contracts attorney with no experience in the laws of war, Bravin writes, but he told a subordinate drawing up the rules of the commission “to avoid using the word rights — except to state, as the document did, that the order conferred none. Instead of rights, those selected for military commissions would have ‘procedures accorded to the accused.’”