The Failed Military Commissions

Military commissions have repeatedly failed in their responsibility to try terrorism suspects at Guantánamo detention facility.

The Guantánamo military commissions were established by President George W. Bush – through a Military Order – on November 13, 2001, to try certain non-citizen terrorism suspects at the Guantánamo Bay detention facility. In 2006, the U.S. Supreme Court struck them down because they had not been authorized by Congress. Later that year, and again in 2009, Congress provided the necessary authorization through the Military Commissions Act.

As Professor David Luban has described, since their founding, “the Military Commissions have been dogged by one scandal after another, beginning as early as 2004 when a veteran Marine Corps prosecutor withdrew because he became convinced that he would have to present evidence obtained through torture. There was the hearing blacked out to observers by someone unknown to the judge, the moment the CIA black sites were mentioned; there was the interpreter detailed to the defense team who had previously worked for the CIA at a black site; there were the microphones disguised as smoke detectors installed in attorney-client interview rooms; and the prohibition on defense counsel doing independent investigations of the torture program; and so many more.”

More recently, prosecutors in the military commissions attempted to use evidence obtained from torture against men whom the United States tortured—a clear violation of long-settled law.

To date, there have been a total of nine convictions in the military commissions, most through plea agreements with the defendants. Several of the convictions have been overturned in whole or in part on appeal, mostly by U.S. federal courts. Only one of those convictions is final.

There are three cases currently ongoing in the commissions, including United States v. Khalid Sheikh Mohammed, et al.—the prosecution of the men alleged to be most responsible for the September 11, 2001 attacks. None of those five cases has yet gone to trial.

Brig. Gen. John Baker, chief defense counsel for the military commissions from 2015 through 2021, testified before Congress in December 2021 to the commissions’ failure:

“Justice delayed is justice denied. But the injustice meted out by the Guantánamo military commissions to the defendants, public, and victims extends far beyond mere delay. These delays are the direct result of government decisions that have corrupted the process from its outset, and that make any just or satisfying future outcomes of commission cases – in the form of legitimate convictions and fair sentences – unlikely if not impossible. Allowing the military commissions to proceed in their current form will thus result at very best in many more years of agonizing delay, and at worst in verdicts that – following those years of delay – are overturned on appeal. To be blunt, the government is gambling with the victims’ real need to achieve closure in some form. That is unconscionable.”

“At the heart of the commissions’ problems,” Gen. Baker continued, “is their original sin, torture.” He added, “More specifically, the government’s fear that the truth will become public is what has most undermined the commission processes.”

Colleen Kelly, whose younger brother, Bill Kelly Jr., was killed in the North Tower of the World Trade Center on September 11th, echoed Gen. Baker’s remarks:

“[I]n May of 2012—more than a decade after 9/11—five men were arraigned. Today, another nine years and seven months later, a trial has not even begun. Instead, family members have heard years of argument in pre-trial hearings. While these hearings have produced no legal justice for 9/11, they have revealed the shocking role of torture in undermining the 9/11 prosecution. Instead of learning how and why the attacks were carried out, and who was responsible for doing what, family members have followed seemingly endless litigation largely concerned with the defendants’ torture by government agents and the government’s attempts to keep that information from coming to light.”