On May 5, in the U.S. prison camp in Guantánamo Bay, Cuba, the military trial of five men accused of being 9⁄11 conspirators will begin. By then, all five will have been in U.S. custody for over a decade, first under George W. Bush, whose administration built their jail, and now under Barack Obama, who ran for office on a promise to close it. The media will likely present the trial as historic. Reporters will file dispatches detailing the courtroom play-by-play, which will surely verge into the dramatic and bizarre. But such reports, squeezed into a few newspaper paragraphs or a minute or two of airtime, will almost certainly fail to relay the complex history of legal and political battles underlying the proceedings — a history that will be crucial to understanding the fate of the 9⁄11 detainees, and the meaning of their trials for the American justice system.
Anyone looking for context will be well served by Jess Bravin’s The Terror Courts: Rough Justice at Guantánamo Bay (Yale). Other books have described the various tribunals over the years, but Bravin’s is the first to focus more on the prosecution than the defense. Typically, Guantánamo’s defense lawyers, military and civilian alike, have been much more forthcoming with media, in the hopes of winning in the court of public opinion. Bravin — who has covered several incarnations of the tribunals for the Wall Street Journal—doesn’t ignore the defense. But by focusing on the prosecution, he provides a new look at the rationale behind the government’s attempts to create a parallel system of justice for a ragtag group of foreign men, most of whom turned out to have had little or nothing to do with anti-American terrorism.
Bravin’s narrative follows Stuart Couch, a Marine Corps prosecutor whose close friend died in the September 11 attacks. On Nov. 13, 2001, President Bush issued an order creating military commissions for the attack’s perpetrators. Couch — a graduate of an evangelical Christian law school who shed tears of pride during Bush’s inaugural address — applied immediately, assuming he would be working to convict those who helped kill his friend.
Instead, he found himself charged with preparing cases against men who were, at worst, peripheral figures in al Qaeda. Like everyone else involved in the improvised new system, he struggled to understand how it was supposed to work and what legal precedents were meant to apply. As he learned more about the torture the accused had suffered at U.S. hands and the extent to which the testimony against them had been coerced by the torture of others, he became racked with guilt over his involvement. In the particularly egregious case of Mohamedou Ould Slahi, a Mauritanian man subjected to numerous beatings and extensive psychological torture, Couch refused the chief prosecutor’s orders to proceed with the case. He could not be fired — this would only make the commissions look even worse — so instead the case was put on the back burner, and Slahi left in his cell, where he remains to this day, his request for actual charges circulating in slow motion through civilian courts.
Other cases Couch was working on simply collapsed. More than one ended before it started, thanks to intervention from civilian courts or pressure from a foreign government. The failure of the Guantánamo tribunals to deliver anything approaching justice isn’t surprising considering the legal views of their architects. Bravin reminds us that according to former White House legal counsel John Yoo — a champion of marginal views about expansive presidential powers — wartime trials aren’t necessary if the president doesn’t desire them. In Yoo’s opinion, during war the president can have detainees executed without trial, drop bombs on villages, or crush the testicles of a suspected terrorist’s child in hopes of getting that suspected terrorist to talk. Often, Yoo would issue his legal opinions, then have them classified as state secrets, as if aware of how shocking they sounded.
Yoo drafted the broad Authorization for Use of Military Force, passed by Congress on Sept. 18, 2001, in which the power to “take action to deter and prevent acts of international terrorism” was recognized as inherent to the office of the presidency. The authorization made no mention of military commissions or trials of any kind. Weeks later, the White House Office of Legal Counsel, citing Yoo’s arguments, said Congress implicitly approved military trials. The opinion was classified and stuck in a Pentagon safe.
Yoo and his bosses wanted military courts not because they stood a greater chance of achieving convictions, or even because they were more efficacious, but because they conformed to a certain view of executive war powers. Later, they would stand a better chance of concealing the pointless violence Americans had unleashed upon prisoners in dark rooms around the globe.
Bravin does a good job explaining that the precedents cited in favor of tribunals — cherry-picked from the legal record — do not mean what the likes of Yoo say they do. Tribunals have been used before, but primarily for dispensing justice in non-ideal conditions created by proximity to the theater of war. As Bravin demonstrates, the true weight of precedent is decidedly against commissions, at least in the forms they’ve taken at Guantánamo.
By the end of The Terror Courts it’s depressingly clear that having precedent on your side doesn’t get you very far, especially in times of nationwide panic. The Supreme Court has attempted to assert the applicability of basic legal principles to Guantánamo’s prisoners (such as when it upheld habeas corpus), but its decisions — which seemed so historic when issued — had little impact since Congress responded with laws designed to keep the courts essentially the same as always, albeit slightly less Kafkaesque. The standards for bringing a case to trial have risen, but very few have come any closer to the end of legal limbo.
When Stuart Couch’s three-year assignment in Guantánamo was up, he became a Marine Corps judge. After failing to be promoted, he returned to civilian practice (the military does an excellent job of cycling out voices of reason), and went on to become a judge of the U.S. Immigration Court in North Carolina in 2010. Couch and scores of fellow dissenters — including other military lawyers, Department of Justice employees, citizen lawyers and activists — did their best; this book suggests that it wasn’t enough.
Precedent is well and good, until the executive branch does what it wants anyway. Next time, they probably won’t do it at Guantánamo, but in new prisons built in secret. Or, easier still, with drones, whose victims do not get even a sham day in court.