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.’”
Bravin also chronicles the effort to transfer the terrorism portfolio from the Justice Department — which enjoyed a terrorism conviction rate of almost 100 percent — to one of Attorney General John Ashcroft’s cabinet rivals, Donald Rumsfeld, and how that, too, was meant to put a thumb on the scales of justice. “In one early draft, the secretary of defense would select all the participants — the members of the commission, the prosecutor, the defense attorney — and then would decide any appeals,” Bravin writes.
Days after officials produced that draft, Vice President Dick Cheney brought it to the president and discussed it with him over lunch. “Normally,” Bravin writes, “documents for the president’s approval are filed with the White House staff secretary, who circulates the draft among key officials for last-minute comments or concerns.” Instead, the president signed the commissions order hours after his discussion with Cheney, without the staffing. The White House issued a small press release. “As news reports picked up the press release, there was shock — most of all among administration officials who discovered they had been cut out of the process,” Bravin writes.
While the book provides a roster of villains, including what could only be called a gleeful evisceration of former chief prosecutor Robert Swann, there are heroes, too: men in uniform who were deeply uncomfortable about the direction the military commissions were taking. One of those people was Marine Lt. Col. Stuart Couch, who appears to have been a key source for the book.
Couch ended up as the chief prosecutor’s point man for the most significant cases at Guantanamo. He was asked to build cases on detainees. Yet as he dug into one case after another, he hit roadblocks that made prosecution impossible. Either the CIA would not provide intelligence for the case, or the prisoners were abused, or the evidence was thin.
The book ends with the May 2012 arraignment of Khalid Sheikh Mohammed, the alleged 9/11 mastermind, and his four co-defendants. I was at that arraignment, and as Bravin reports, it took 13 hours. Defendants misbehaved. Defense attorneys objected. And the prosecution was forced to read almost the entirety of the 87 pages of charges in half-hour rotations.
The problem is that by ending there, Bravin leaves readers with plenty of dark stories about the commission’s past but without a strong sense of how the commissions may have been reformed since that time. Bravin leaves the impression that the commissions may never transcend their history. His pessimism — though not unwarranted — seems, at best, premature.
Dina Temple-Raston reviewed this book for The Washington Post.