Tag: military commission

Guantánamo: Trump’s Order Re-Ignites Controversy

President Trump on January 30 issued an executive order regarding the prison at Guantánamo, Cuba entitled the “Presidential Executive Order on Protecting American Through Lawful Detention of Terrorists.” It stated, ion part, ““Detention operations at U.S. Naval Station Guantánamo Bay shall continue to be conducted consistent with all applicable United States and international law, including the Detainee Treatment Act of 2005” and the U.S. “may transport additional detainees to U.S. Naval Station Guantánamo Bay when lawful and necessary to protect the Nation.” [1]

Shortly thereafter in his State of the Union Address the President announced this action with an additional  ad-libbed remark: “”in many cases terrorism detainees who are captured in the future will now be sent there.”

However, also after the speech, State and Pentagon officials said there were no plans to send new detainees to Guantanamo, a continuation of the practice for nearly the last 10 years.  And John Bellinger, a legal adviser in the Bush White House, said he thought that, given past failures, there would be institutional resistance to refilling the camp. “I  suspect the Departments of Defense, Justice and State would oppose sending new detainees to Guantánamo.”

This action has re-ignited controversy over the U.S. prison at the eastern end  of the island of Cuba in addition to those criticisms mentioned in the prior post.[2]

                                                     Re-Ignited Controversy

According to Robert M. Chesney, a law professor at the University of Texas, Austin who on the U.S. Justice Department detention policy task force in 2009, “Nothing in the new executive order changes the various legal and policy obstacles that help explain why no one was brought there in 2017.” Those obstacles are the Islamic State, transfers and the military commissions trial system at the prison.

  1. Is the U.S. at war with Islamic State detainees?

The legal basis for detention of al-Qaeda and Taliban fighters in the prison is the Authorization for Use of Military Force (AUMF) Act that was enacted imIslamic mediately after the 9/11 attacks for military action against the perpetrators of those attacks.

But it is at best unclear, and at worst illegitimate, to claim that AUMF covers Islamic State or ISIS fighters. Thus, transferring any of these individuals to Guantánamo runs the risk of a U.S. federal court ruling that such transfers and detentions are illegal.

This legal risk could be eliminated if Congress passed a new law specifically authorizing the use of U.S. military force against ISIS of the Islamic State, but is it safe to assume Congress would do so.

2. Would the U.S. have legal authority to transfer Islamic State detainees from Guantánamo?

Although the new Executive Order says that Guantánamo detainees may be transferred to the U.S. for trial in U.S. federal courts, there are existing federal statues that forbid such transfers.

Again Congress could pass new laws abolishing those restrictions, but is it safe to assume Congress would do so.

3. Are the military commissions at Guantánamo effective ?

Professor Chesney observes that this system “has floundered in practice, with contested cases bogging down in years of pretrial hearings.” Indeed, President Trump himself this last November acknowledged this problem when he explained why he had decided token the New York truck-attack suspect in the civilian criminal justice system instead of transferring him to Guantánamo.

4. Is the operation of the Guantánamo prison too expensive?

According to the most recently available government figures, Guantanamo cost $445 million to run in fiscal year 2015—making its current costs about $11 million per inmate.

By contrast, the average cost per inmate in the federal prison system was $31,620, the federal Bureau of Prisons said in a 2016 filing.

5. Is the Guantánamo prison a tainted symbol that fuels anti-Americanism?

Indeed, the prison is such a symbol and enhances anti-American sentiment throughout the world. This was a major reason for a Washington Post editorial condemning the Trump executive order. Said the Post, the prison has “incited a storm of international criticism, handed a recruitment tool to al-Qaeda.” This cost of the prison, the Post adds,  is exacerbated by the “hopelessly bogged down” military commissions at the prison in contrast to the over 600 convictions in terrorism cases in U.S. federal courts since 2001.

Mark Fallon, a former chief investigator of the Defense Department’s Criminal Investigation Task Force, said, even if no more prisoners are sent there, Trump’s announcement itself had already caused damage. “Globally [Guantánamo] symbolizes injustice, oppression and torture. And so when you see the president out there talking about expanding upon it, I’m just afraid that that it puts our troops in greater danger overseas and it jeopardizes our national security.”

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[2] President Trump’s Unsound Action Regarding the U.S. Prison at Guantánamo Bay, Cuba, dwkcommentaries.com (Jan. 31, 2018).

[2] Savage. Ordering Guantánamo to Stay Open Is One Thing, But Refilling It Is Another, N.Y. Times (Jan. 31, 2018); Editorial, Trump says he wants to refill Guantánamo. Bad Idea, Wash. Post (Feb. 1, 2018); Schwartz & Lubold, Trump’s Guantaanamo Move Keeps Prison and Detainees n Limbo, W.S.J. (Feb. 1, 2018);Borger & Smith, Guantánamo: Bush-era officials warn keeping prison open may be $6bn error, Guardian (Feb. 1, 2018).

U.S. Military Commission Trials of Dakota Indians After the U.S.-Dakota War of 1862

The U.S.-Dakota War of 1862 lasted from August 17th through September 24th.  It ended with 447 white people killed, more than 300 of whom were not in any battles, including at least 100 white children and 50 white women. In contrast, only 29 Dakota Indian men had been killed. The U.S. Army also captured many Dakota men, women and children.[1]

Colonel Henry H. Sibley
Colonel Henry H. Sibley

On September 27th Henry H. Sibley, who had been appointed by Minnesota Governor Alexander Ramsey to be in charge of the militia fighting the War, issued an order creating a military commission to try the captive Dakota Indians. Another order the next day stated that the commission of five officers would “try summarily the Mulatto [Joseph Godfrey],[2] and Indians, or mixed bloods . . . and pass judgment upon them, if found guilty of murders or other outrages [rapes] against the whites, during the present state of hostilities of the Indians . . . . [to be] governed . . . by Military Law and Usage.”[3]

BachmanbookGodfrey was the first to be tried. His Charge was “Murder” with the following two specifications:

1. “Godfrey , a colored man, did at or near New Ulm, Minn., on or about the 19th day of August 1862, join in a War Party of the Sioux tribe of Indians against Citizens of the [U.S.] and did with his own hand murder seven white men and women and children more or less, peaceable Citizens of the [U.S.].”

2. “Godfrey, a colored man, did at various times and places between the 19th day of August 1862, and the 28th day of September 1862, join and participate in the Murders and Massacres committed by the Sioux Indians on the Minnesota Frontier.”[4]

His trial on these charges started with his own detailed testimony that he had felt coerced to join the initial Dakota war party, that minimized his own participation and that he had not killed anyone, but only hit a white man with the blunt edge of a hatchet. Six witnesses testified that Godfrey had appeared to be a willing participant and had said he had killed people, but none said they had witnessed any such killings. His trial took one or two days. Thereafter, Godfrey testified in other cases on behalf of the prosecution.[5]

The commission subsequently issued its decision that Godfrey was “guilty on the charge [of Murder], and second specification [of participation in murders and massacres by the Indians], and not guilty on the first specification [of murdering anyone himself].” The commission, therefore, sentenced him “to be hung by the neck until he is dead,” but recommended “a mitigation of the sentence to imprisonment for ten years.” [6]

The commission also conducted trials of 391 other Dakota Indians over no more than 30 days. Of these, 302 were convicted and sentenced to death by hanging; 20 were convicted and given prison terms of one to five years; and 69, including one Dakota woman, were acquitted.[7]

After all the cases had been tried and decided, the commission sent a message to Sibley renewing “their application for a commutation of the sentence of . . . Godfrey . . . .” They said his “testimony [in other cases] has been invaluable to the State, for without it a large number of men of the very worst character would have gone unpunished.” His evidence “has always proved truthful both by corroborative evidence and by the acknowledgements of the prisoners themselves.” Therefore, “his services . . . warrant the exercise of judicial clemency.”[8]

Sibley, however, refused this unique plea for clemency and did not commute Godfrey’s sentence of death by hanging.[9]

All of these convictions were put on hold when President Lincoln by a November 12th telegram decided that his Administration would review the military commissions’ decisions with an order to General Pope to forward the “full and complete record” of the convictions to the President.[10]

[2]  As discussed in a prior post, Godfrey was a black slave in Minnesota who had escaped his owner in the 1840s and gone to live with the Dakota Indians and who fought with the Indians in this War.

[3]  Bachman at 124-25.

[4]  Id. at 138-39.

[5]  Id. at 138-66.

[6] Id. at 180-81.

[7] Id. at 220-22.

[8] Id. at 218-19.

[9] Id. at 221-22.

[10] Id. at 239. President Lincoln’s review of the convictions will be the subject of another post. Another topic to be explored in another post will be certain legal issues raised by these trials and sentences.