There is perhaps no more controversial space in the world than the U.S. Naval Station at Guantanamo Bay, Cuba. For many, Guantanamo represents the very worst of the American prosecution of its post-9/11 conflict: executive overreach, detainee abuse and neglect, and modest judicial oversight. 

As noted in Part I of this three-part post, Guantanamo, a military base typically associated with its detention facilities and courtrooms to the exclusion of its other features, is a quite ordinary and expansive place.  In the previous post, I also expressed the view, reaffirmed by my observations of military commissions and conversations with the prosecution and defence teams, that the alleged mastermind of the USS Cole bombing and the 9/11 defendants should be tried in federal court.  My remaining comments will support this conclusion.

For starters, federal courts have more reliable, predicable, and well-established rules.  In federal court, the two cases (USS Cole and 9/11) would be randomly assigned to two separate judges, whereas at Guantanamo the two commissions are presided over by a single judge.  In federal court, consistency of the rules therefore would be promoted by the ability of two judges to apply set rules to their cases; consistency in the commissions arises not necessarily because the rules are known in advance, but because one judge is applying, and arguably making up on the fly, rules for multiple cases.  The United States should show the world that it can obtain convictions under ordinary rules, without the aid of the commissions’ more flexible standards.

While the two cases are inherently complex, federal court proceedings present efficiencies in that judges, court staff, lawyers, and witnesses need not travel to Cuba for hearings held weeks and even months apart.   In federal court, those hearings could be held more regularly, and would eliminate the need for any Guantanamo-specific server issues that led to the disclosure of defence emails to the prosecution.

Accordingly, even if it is true that commissions have been used in other wartime contexts, this does not mean, as a normative matter, that they should be used.  The executive’s discretion in selecting the commissions as the appropriate forum for these cases comes at the cost of efficiency, credibility, and technological problems that undermine the concept of fairness that lies at the heart of any legitimate legal system.  Guantanamo has diminished, and continues to deplete, America’s soft power and moral standing around the globe.  The commissions’ skewed rules and irregular system contribute to this situation.  In short, federal courts would be the better form of justice.

Following the Supreme Court’s opinion in Hamdan v. Rumsfeld, Neal Katyal, the lead attorney for post-9/11 detainee Salim Hamdan, said, ‘if we’re going to win the war on terror, … we’re going to win it through saying to the world that we actually have a better model than you because in your countries you settle these things through force and fiat, and here we settle them through law.’  The United States cannot credibly make this statement or hold itself out to the world as an ‘Empire of Liberty’ if it continues to insist upon using a military model when a more procedurally sound civilian model is available.

In my next and final post in this series, I will address some of the key counterarguments to the use of federal courts to try these defendants.

Professor Dawinder ‘Dave’ S. Sidhu teaches and writes in the areas of constitutional law and national security law at the University of New Mexico School of Law.