By John Ryan | May 1, 2016 | Lawyer Limelights, Guantanamo Bay
Those who knew Prof. David Glazier during his college days at Amherst assumed he would go to law school, and they were right – eventually. He first spent two decades with the U.S. Navy, seeing a significant part of the world and gaining an impressive array of experiences, including those that would later inform his law studies at the University of Virginia and his scholarship afterward. Glazier teaches international criminal law, law and the use of force, and the law of war at Loyola Law School in Los Angeles.
Lawdragon first encountered Glazier’s work last year as it reviewed academic articles in preparation for its coverage of the military commissions at Guantanamo Bay. Glazier, who is critical of the commissions, has authored six law journal articles and one book chapter on the topic. With April’s hearings unexpectedly cancelled in the long-pending case against the five defendants charged with planning and supporting the Sept. 11 attacks, it seemed like a good opportunity to discuss the commissions and their place in history with Glazier. We also posed to him some questions we frequently get when discussing our Guantanamo coverage with colleagues and readers.
Lawdragon: First off, can you tell us about your service in the U.S. Navy – where you went and what you did?
David Glazier: I spent 21 years as a “surface warfare officer,” meaning that I served my sea tours on combat ships – three destroyers and a cruiser – before culminating my career as the commanding officer of a guided missile frigate. I made two extended (five-to-seven month) deployments to the Indian Ocean, two to the Mediterranean, and one to Central America, as well as a number of shorter cruises to the Baltic, Caribbean, Southeast Asia, and South Pacific. Among the many interesting experiences I had were enforcing United Nations sanctions against both the former Yugoslavia and Haiti, interdicting 200-plus illegal migrants at sea, and seizing more than 7,000 lbs. of cocaine. Ashore I had the opportunity to work in political-military affairs in Washington, D.C., on the Joint Staff, to work closely with the Japanese Self-Defense Forces, and help manage navy-to-navy relations with China.
LD: How did you develop an interest in getting a law degree and then decide what to focus on in terms of scholarly areas?
DG: As a history major at a liberal arts college, it was pretty much expected that I would go to law school; I shocked a lot of people when I declined admission and went off to Navy Officer Candidate School instead. But my interest in law was sharpened over the years both by first-hand participation in the administration of military justice, and the routine need to apply international law to what I was doing.
While the Navy does by far the best job of all the services in supplying its personnel with a comprehensive international law manual, I was surprised to find that other nations I dealt with, including close allies like Denmark and Japan, had differing interpretations on some fairly significant matters. This really enhanced my desire to study international law and be able to form my own conclusions rather than simply accept the validity of “official” opinions, as serving officers are expected to do.
My retirement was effective on September 1, 2001, and I was just a couple weeks into my 1L year on 9/11. I was surprised by President Bush’s announcement about military commission employment later that fall; I, like probably most other Americans, had never heard of them at that point. I was lucky that the University of Virginia allowed first year students to take one or two elective courses in the spring semester and I was able to begin my continuing involvement with this topic by writing a research paper for International Criminal Law that semester. That ultimately formed the basis of a Virginia Law Review note, which the District Court drew upon in initially halting the trial of Salim Hamdan [Osama bin Laden’s driver, whose conviction by a military commission was later overturned].
Of course to really understand military commissions, one has to understand the history of American military justice and the law of war, so I’ve been researching these fields since 2002 as well.
LD: How do you describe the military commissions system? It is sometimes referred to as a hybrid system, based on the Uniform Code of Military Justice but also with procedures found in federal court.
DG: The Guantanamo military commissions are generally based upon the U.S. court-martial, but lack some of the procedural protections accorded to military defendants - including the right to a meaningful pre-trial hearing; the full Military Rules of Evidence, which are essentially copied verbatim from the Federal Rules of Evidence; and the right to be defended by foreign national counsel, which is something desperately desired by some commission defendants. The Guantanamo military commissions also have greater freedom to make up their own rules in many areas.
LD: But there are some areas similar to federal courts.
DG: Comparisons with federal courts are typically made by military commission proponents to bolster support for commission use, but are generally at least a bit deceptive. It is true that Congress did prescribe rules for handling classified material in the commissions that are patterned closely on the Classified Information Procedures Act (CIPA) legislated for Article III courts. And all military courts, including the commissions, are required to presume innocence, prove guilt beyond a reasonable doubt, provide a right to counsel, and allow the defendant to be present unless excluded due to their own disruptive behavior.
But military courts do not provide any tenure at all for judges – and we've already seen both trial and appellate military commission judges removed from their positions while cases were pending; they allow the same individual who makes the decision to prosecute to hand pick the trial panel; and they allow non-capital verdicts to be less than unanimous, even with a trial panel as small as five officers. So if one wants a concise description of the military commission system, I would call it a "court-martial lite" rather than a hybrid, which could disingenuously imply that it was significantly more like the federal system than a regular court-martial is, when overall it is less so.
Many American officers naively believe that American military justice is the “gold standard” in that field; the reality is that U.S. court-martial practices are no longer accepted by any other democratic state. So a trial meeting court-martial standards would still be problematic under international law – one falling short of that mark is legally indefensible.
LD: The 2009 Military Commissions Act refers to the law of war, and says that these trials are only for “alien unprivileged enemy combatants.” What’s another way of saying whom this system is designed for and what the jurisdiction is?
DG: To put it bluntly, these courts are set up just to try foreign Muslims suspected of being involved with terrorism. That's really what is commonly understood to be meant by the phrase "alien unprivileged enemy combatants." The United States has elected to purport to apply the law of war to conduct what has always been previously considered to constitute violent crime, and which is robustly addressed in our ordinary criminal codes with a host of defined offenses.
I say "purport" to apply the law of war, because where the accused have not engaged in any conduct that actually constitutes a war crime, the government has simply adopted crimes from the ordinary criminal law and persuaded Congress to include them in the Military Commissions Act, even thought this logically defeats the subject matter jurisdiction of a law of war tribunal.
LD: As first reported by the Miami Herald, the Pentagon recently proposed some changes to the Act, perhaps most notably allowing some hearings to be conducted by videoconference so that the court system doesn’t have to fly to Guantanamo every time there is a hearing. It also would allow a case’s primary judge to appoint a secondary judge to deal with some of the motions that have piled up. Any reaction to the proposals?
DG: Having had the opportunity to observe proceedings in Guantanamo first hand, where you can compare the ability to see the full courtroom with the extremely constrained video feed, you realize how limited the latter perspective is, calling into real question in my view whether any remote participation can fairly be considered being tried in person.
But even more important, in my opinion, is the disparate negative impact on the defense. They will still have to go to Guantanamo for these proceedings to be able to confer with their clients before, during, and after each hearing. So the inequity of already being heavily out-resourced by the prosecution will be enhanced by the extensive travel burdens placed upon them, disruption of their work, etc. And if the prosecution is able to be physically present in the room with the judge while the defense is remote, then the potential for even more ex parte communications is all too real.
Secondary judges may sound appealing, but it raises at least two initial concerns. First, the legal issues involved are extremely complex - largely military-commission unique - and typically interrelated. So it’s not a recipe for justice to expect that some outside military judge can just drop in and expedite matters by making one or more collateral decisions. Moreover, the history of the Guantanamo commissions is rife with outside pressures on both trial and appellate judges. It is thus critical to whatever claim the commissions might enjoy to legitimacy that the defense have full opportunity to research, voir dire, and challenge where appropriate, each new commission judge. So it’s very questionable whether this proposal can really achieve the desired advantage.
[Editor’s note: You can read our profile of James Connell to learn about some of the challenges faced by defense lawyers on the Sept. 11 case. We also interviewed the chief prosecutor, Army Brig. Gen. Mark Martins, who explained why he feels the commissions were an important option for the U.S. government, “to fill a narrow but important role.”]
LD: Let’s back up a bit to when President Bush first implemented commissions by executive order in 2001, and in the minds of supporters since. Where does this idea come from? What’s the lineage of this if we look to early U.S. history?
DG: Military commission proponents always say that these tribunals date back to the Revolution, but the reality is that they were first created by the Army's commanding general, Winfield Scott, who trained as lawyer before joining the Army, during the Mexican War. The Articles of War (forerunner of the UCMJ) in effect at the time only provided for the punishment of military-specific offenses, such as desertion, disobedience of a lawful order, cowardice in the face of the enemy, etc. Congress assumed that the Army would only be used defensively within the United States, and so they had mandated that soldiers accused of common crimes be turned over to local civil authorities for prosecution. But no invading army will ever allow its soldiers to be tried by local enemy civilian courts, and this left no way to punish U.S. soldiers for depredations they committed against Mexican nationals, including even murder and rape.
LD: So it was for his own men.
DG: Yes, Scott used what he called "martial law" authority to create a new "common law" tribunal – the military commission, for the initial purpose of trying Americans, not foreigners. Scott's commission followed existing court-martial procedure, but substituted a set of common law crimes listed in military orders in place of the statutory set of offenses included in the Articles of War. It is thus worth noting that military commissions were never intended to be limited to trying foreigners, nor were they intended to be a downward departure from the due-process standards provided by courts-martial. They differed only in terms of subject-matter jurisdiction. Military commissions were used extensively during the Civil War, and the Philippine Insurrections, continuing this practice of rigorous adherence to court-martial practice; they received the same post-trial review and a number of convictions were overturned on "technicalities" for failing to apply fine points of military justice procedures or rules of evidence.
LD: What are the more contemporary precedents? I know you have written about the case of the eight Germans who attempted Sabotage on U.S. soil in 1942.
DG: The eight Nazi saboteurs who landed in New York and Florida were quickly captured by the FBI with the assistance provided by one of the group leaders who turned himself in. Although the Justice Department initially intended a federal trial, they quickly discovered that there was no adequate crime available on the books to charge them with; they were literally looking at having to resort to offenses like immigration violations for entering the country without passports, and being unregistered agents of a foreign government in order to qualify for a sentence of even just a couple of years in prison.
Attorney General Francis Biddle thus proposed to President Roosevelt that he use a military commission based on a common-law application of the law of war which could impose death sentences. Unfortunately, Biddle also proposed that they depart from the historical practice of faithful adherence to court-martial procedure, and essentially allowed the commission to make up its own rules as it went along, and admit any evidence which the commission panel deemed "of probative value to a reasonable man." Given that the FBI had conducted a thorough investigation and had an impressive collection of damning evidence, including voluntary confessions by each of the eight men that would have been fully admissible in federal court, Biddle's legal shortcuts were wholly unnecessary.
LD: What is the significance of Ex Parte Quirin – the 1942 U.S. Supreme Court case that upheld the jurisdiction of the U.S. military tribunal over the saboteurs – when looking at the support it may provide for, or limitations it places on, the use of military commissions?
DG: Although FDR's order establishing the military commission purported to foreclose judicial review, lead defense attorney Kenneth Royall – a former Felix Frankfurter protégé at Harvard – had the wherewithal to approach several Supreme Court justices and argue the importance of reviewing the constitutionality of using a military commission when ordinary civilian courts were open. Although the Court was in summer recess, and Royall had not even filed a habeas petition in a district court yet, the justices nevertheless agreed to convene a special July term while the military commission proceedings were still ongoing.
The decision, styled Ex Parte Quirin, ultimately upheld the commission on the basis that the eight Nazis were enemy belligerents in wartime who were charged with an actual violation of the law of war, in a theater of war. At least one defendant was a U.S. citizen; the Court held that as a result of his affiliation with the enemy, that fact was no bar to his trial.
The Quirin decision was relied upon by key Bush advisers when they proposed the post-9/11 commission resurrection (the last prior commissions took place in the immediate post-WWII years), but they really failed to read it carefully or apply it in good faith. Bush's order borrowed most of FDR's language essentially verbatim, even including the bar on judicial review, despite the fact that the Court had unanimously rejected that part of Roosevelt's approach just by meeting to hear the case. And in taking ordinary U.S. crimes such as "conspiracy" and "providing material support to terrorism" and attempting to charge them as war crimes, they ignored Quirin's explicit holding that the charges must include a recognized violation of the international law of war in order for the commission to have valid jurisdiction.
LD: What about the commission system’s lineage to the prosecution of Axis powers after World War II? People often draw that link between prosecuting the 9/11 case and Nuremberg.
DG: Virtually every chief prosecutor has too, apparently envisioning themselves as filling Robert Jackson’s shoes. But they conveniently overlook the fact that Jackson was determined to achieve convictions that would stand up to the critical scrutiny of history, eschewing testimony of any witnesses offered plea deals, and insisting on the use only of rigorously authenticated documents and film footage.
Compare that to Guantanamo where the two detainees who have pled guilty [Majid Khan and Ahmad al Darbi] face years of limbo, their ultimate release dependent on the perceived value of their eventual testimony; key evidence in the few trials completed to date have been statements obtained from individuals subjected to coercive interrogation; and the government shows inflammatory video footage culled from the Internet by a self-proclaimed terrorism expert who doesn’t even speak Arabic and cannot credibly vouch for its authenticity. But the prosecutors shamelessly argued that Jackson showed a movie at Nuremberg, so they should get to do so at Guantanamo as well.
Moreover, consider that Nuremberg remains by far the single most complex trial ever conducted in terms of the historical span of the conduct, wide-ranging roles of the 22 defendants, and volume of evidence that had to be collected, sorted, assessed, and culled for admission. Germany was only defeated on May 8, 1945 (VE Day). The International Military Tribunal was then created from scratch and the trial opened just six months later, and lasted less than a year.
It will soon be a full decade since George Bush announced the transfer of the alleged 9/11 conspirators to Guantanamo and demanded that Congress enact the initial Military Commissions Act so that the victims of 9/11 would not have to wait for justice any longer. Yet everyone associated with the process knows that any actual trial is still a year or more away, and will then be followed by many more years of agonizing appellate review. While the commissions devote considerable resources to victim outreach, the prosecutors know that the reality is that they have many more years of uncertainty in front of them before any verdict can possibly be considered final, and that the commissions pose a greater risk of ultimate failure than regular federal prosecutions.
LD: Let’s return to the Quirin holdings. Convictions under the military commissions from the Bush era or resolved during the Obama administration have faced problems on appeal. Why has this happened?
DG: While there are literally dozens of issues concerning commission practice that could eventually end up being addressed in federal courts before any commission convictions can be considered final, the cases to date have focused on a core question raised in Quirin, the legitimacy of the basic charges prosecuted. The D.C. Circuit overturned Salim Hamdan's conviction for providing material support to terrorism – the only charge against Australian David Hicks as well – on the grounds that it did not constitute a recognized war crime.
LD: Can you speak to the case still pending with the full D.C. Circuit panel involving Ali Hamza al Bahlul, who was convicted for doing media support for al Qaeda?
DG: The initial D.C. Circuit consideration of al Bahlul confirmed the Hamdan decision and extended it to solicitation as well; the government did not file a timely appeal so those decisions are now final. The government did, however, seek reconsideration on the validity of al Bahlul's conspiracy charge. Although admitting that conspiracy is not an internationally recognized war crime, the government contends that since it had been prosecuted by Civil War era military commissions and charged again in several WWII cases, it can do so again today at Guantanamo. The real flaw in the government's argument is that the Civil War courts claimed domestic law authority as martial law courts, and thus were not limited to applying only the actual law of war as the Guantanamo tribunals are, and no court has ever upheld the WWII era conspiracy charges. The decision on this issue is currently pending from an en banc rehearing last fall.
LD: Do these rulings affect the pending cases against high-value detainees, such as the Sept. 11 defendants, or are those on safer ground?
DG: The cases against the 9/11 defendants are on "safer" ground in the sense that the charges, such as murdering civilians and destroying civilian property, are recognized war crimes, unlike those at issue in Hamdan and al Bahlul. But the issue in these high-value detainee cases are whether the charged conduct actually falls within the definition of the crimes charged. While these are very straightforward cases to prosecute in federal court, there are real questions about whether it might be lawful to attack airliners, and even the World Trade Center, as economic support targets, which would then make the resulting civilian deaths "collateral damage" rather than murders. The U.S. has taken a broader view of legitimate wartime targets than most other countries do, and this could come to bite the commissions whenever these cases finally get to trial.
And the pending prosecution of Abd al Rahim al Nashiri, for his alleged role in the bombing of the USS Cole is really problematic given that no member of the U.S. military thought we were at war then, but a war crime can only take place during hostilities. As ordinary terrorism prosecutions, the attack on the Pentagon and the Cole are per se impermissible acts of violence; in a war crimes prosecution both are fully legitimate targets and the government then has to demonstrate why the means of attack was impermissible. This could prove to be much harder to do in practice than it sounds.
LD: As these cases move forward at Guantanamo, what are some of the key differences compared to what the defendants would be facing in a federal court proceeding or a court martial?
DG: I think that the key difference is that in federal courts and courts-martial, the procedures are well settled; judges and attorneys know how to conduct those trials expeditiously, and certainly in the case of federal prosecutions the fundamental validity of commonly used charges is well established. In the commissions, in contrast, literally every aspect is untested; judges are having to make almost everything up as they go, with attendant challenges by one side or the other to almost everything that they do. There is thus real potential for pretrial habeas challenges, mid-trial interlocutory appeals, and post-trial direct and collateral review of countless aspects of both procedure and substantive law. So while federal trials would complete fairly quickly, we might still be years away from trial of these high-visibility cases, and are certainly looking at many more years of post-trial proceedings until any convictions would be final.