Michel Paradis currently serves as a senior attorney for the Department of Defense, Office of the Chief Defense Counsel. He is a member of the team representing defendant Abd al-Rahim al-Nashiri in the military commission held at U.S. Naval Station Guantanamo Bay, Cuba. Mr. al-Nashiri has been accused of several crimes resulting from his alleged involvement in the 2000 bombing of the USS Cole, including perfidy, murder in violation of the law of war, and terrorism. The government is seeking the death penalty. In this blog post, Mr. Paradis discusses ongoing issues with the military commission, as well as its place in domestic and international law.
- Q: What is your current role in the Department of Defense, and how did you get there?
MP: I have a somewhat unusual bureaucratic designation. I am effectively a Department of Defense employee as a GS-15 but not technically in the civil service. Getting there was a bit of a circuitous road: I was in graduate school, doing various international law, human rights, and international humanitarian pro bono work, which gets you on listservs. An e-mail was sent to one of the listservs I was subscribed to, seeking lawyers to work on a case involving an Australian citizen in Guantanamo, a man named David Hicks. He was charged before the military commission right after the Military Commissions Act of 2006 was passed. I had been following the Guantanamo issues, but I was by no means heavily invested in it. I did a bit of research and writing in representing Hicks as pro bono work. The lead defense counsel liked my work and invited me to Guantanamo to participate, but David Hicks pled out in a deal to go back to Australia. A few months later, I received a call that detainee Omar Khadr had fired all of his lawyers and he needed new lawyers as the case was about to start. It sounded like an interesting opportunity, so I went to Washington and tried to get the case off the ground. One thing led to another, and the Marine Colonel [commander of the Military Commissions Defense Organization (MCDO)] asked me to join the office, initially part-time, so I could finish my PhD. That’s how it started, about ten years ago.
- Q: What are your responsibilities for the MCDO?
MP: Most of what I do now involves appellate and habeas corpus litigation. The two cases that I have ongoing are the cases of al-Nashiri [USS Cole] and al-Bahlul [Osama bin Laden’s secretary]. Al-Bahlul is one of two people convicted in military commissions. He was charged with conspiracy, solicitation, and material support for terrorism and we got two of his convictions thrown out. The remaining conspiracy charge is in an endless cycle of litigation.
- Q: Do either of the detainees you currently represent, Mr. al-Nashiri or al-Bahlul, have any claims that originated in international law?
MP: Yes. And the short answer is almost all of it should be international law. One of the great debates in the military commissions is how international law and domestic law interact with each other. The traditional use of military commissions was to prosecute war crimes, and war crimes have historically been understood (until I would say, 2012, unanimously understood) to be violations of the international law of armed conflict. Violations of the Hague Convention; international war crimes like the kind that were prosecuted at Nuremberg, for example, relating to nations as well as individuals. You have individual liability for violating the international law of war in the same way you can charge a pirate for violating the international law of the sea.
Theoretically, the military commissions were designed to be, and are arguably constitutionally required to be, very much like things like the International Criminal Tribunal for the Former Yugoslavia, where you tried individuals for violations of crimes that are part of international law. In the Nashiri case, it‘s a controversial claim on the facts, but I think it’s actually a straightforward law of war argument. He is charged with the crime of perfidy, which is pretending to be a noncombatant while carrying out a combatant act. It’s sort of like fraud. The government argues that the people who blew up the USS Cole made their explosive device look like a fishing boat, and when it approached the USS Cole, the people on the Cole had no reason to believe that it was a dangerous boat. When it detonated, it was essentially a trick: it was an unlawful trick. And that at least states the crime of perfidy, which has been recognized as a matter of international law for hundreds of years and people get prosecuted for it.
What is problematic is that the government has also sought to import domestic law crimes into the military commissions. The main issue in the al-Bahlul case has been the controversy over the crime of conspiracy. Conspiracy is a domestic crime. It’s used to prosecute organized criminals and gangsters. But it’s not an international law crime. No one tries conspiracy in international courts because it’s not a crime in international law. The question is: can you also be tried for domestic law crimes (like conspiracy) constitutionally in military commissions?
Another area where the international law / domestic law distinction has been significant came up in the Nashiri case. In order for a war crime to be a war crime, you have to have a war. It seems like a pretty straightforward and logical proposition. And one question in the Nashiri case is, “what war was going on in October of 2000–in Yemen?” Almost everyone, at least intuitively, would think the beginning of the war followed a year later, to the extent you accept that the “war on terrorism” is a war. I think most people would say that war began on September 11th, 2001. So, one of the big questions is, “was the USS Cole bombing part of a war?” How you determine that is, possibly, a question of international law–there is international law on how you recognize the beginning of hostilities. Again, there is this tension between domestic law, international law, and figuring out what legal standards apply to these questions of war.
Nashiri’s habeas claim is before the district court in D.C., specifically the question of, “is he a combatant?” It’s a novel question and, assuming it is not resolved on a procedural issue, we should have an answer in the next three to six months.
From an international standpoint, another angle on all of this is that al-Nashiri was in the CIA’s Rendition Detention and Interrogation program–the “torture” program–which took him all around the world in these secret black sites where he was very, very, brutally tortured. One of the strategies that we have had–which is very difficult because of issues of classified information, but nevertheless has been quite successful–is to bring cases in the European Court of Human Rights against European nations that are alleged to have hosted CIA black sites. We won one of the two cases, where the European Court of Human Rights held that a particular European country violated its obligations under the European Convention of Human Rights by hosting this black site in which al-Nashiri was tortured [Al Nishiri v Poland, 7/24/2014]. The other case is still pending.
The military commissions at Guantanamo present this interesting intersection of all sorts of different kinds of international law. There, you have European human rights law. You have a law of war. You have domestic constitutional law. People have brought claims in the Inter-American Commission on Human Rights. It really is a master class in international law jurisdiction. And now, the International Criminal Court launched what’s called a preliminary investigation, rooted in the International Criminal Court’s jurisdiction over Afghanistan. They are reviewing the war on terrorism going back to 2002, conducting the first phase before someone can be prosecuted before the International Criminal Court–a formal investigation of an issue.
One of the challenges one of the job–one of the joys, actually–is trying to reconcile these issues. It’s a massive conflicts of law problem.
- Q: The Nashiri case is in somewhere between its sixth and ninth years of pre-trial hearings, depending on how you toll the calendar. Would you like to see the trial moved to a federal court?
MP: Our position is that this case does not belong in Guantanamo, even if you accept military commissions are a just and appropriate forum for some cases. Nashiri’s case has no relevance to and does not belong in a military commission. The only reason it’s in a military commission is that the government tortured him quite brutally and is attempting to cover up that fact. If you want to know what the Nashiri case would look like if it was tried in the Federal Courts, look at the Abu Khattala case [attack on the Benghazi consulate] that just finished up.
- Q: If you snapped your fingers and the case moved to SDNY, would it move faster? If the issue is protecting issues involving torture, which presumably involves lengthy issues of declassification, how would it move faster in a federal court?
MP: For one, the fact that it is in Guantanamo does make everything slower. It’s just the brute-force of logistics.
Then, a federal court will have a judge who is much more adept at managing a complex criminal prosecution. I think that’s one of the major defects, probably the fatal defect of the military commissions. It is just the quality of the judging. That’s not to denigrate them. As a practical matter, military judges–people who practice military law–do not have experience handling complex cases and they very rarely have responsibly for handling serious cases. By and large, military courts-martial deal with relatively straightforward crimes. They don’t deal with conspiracies very often and they typically deal with minor crimes that occur in a very closed environment, where the evidence is straightforward one way or another. The military justice system works well very well in the military. But you just don’t have, at any level – judges, prosecutors, or defense lawyers – in-depth experience litigating complex cases that don’t involve, for example, “Were you off post on Thursday? Did you abuse your spouse?”
- Q: There’s also corruption in contracting.
MP: True. But those those are typically not tried in courts-martial once they reach a certain level of complexity. My basic point is that the judges are just outclassed by the complexity of the issues they face in the military commissions.
- Q: So the federal court would be significantly faster, even if you assume the same amount of time required for declassification in federal and military court?
MP: Lewis Kaplan would know how to try these cases, just as he knew how to try the embassy bombings case. There have been about 500 terrorism cases of varying complexity in the federal courts, many involving some classified information. The federal court system just has the wherewithal and the experience to know where the pressure points are going to be and how to manage those in an efficient way. Just on the question of speed, federal courts know how to solve these problems and know where the pitfalls are going to be and how to account for them.
I think the other problem in the military commissions, that you would not have in the federal courts, is outside agencies interfering with the proceedings. There’s a big controversy ongoing with this in the al-Nashiri case right now. Then there’s the famous smoke detector microphone issue that we had a couple of years ago. And there have been other issues. You had the discovery that the Central Intelligence Agency had wiretapped the courtroom and was interrupting the audio feed. You couldn’t do that in the Southern District of New York. And if anyone ever attempted to do that, the judge would immediately hold them in contempt. Then You had an issue where the FBI put an informant on one of the defense teams, for reasons I do not know. Then there was that translator. One of the other defense teams needed a new translator and they were given a translator that had worked in the “black sites” on the very same defendant’s case. How did that happen? Who knows. But that’s an incredible thing.
The issues are big and small. There was an issue about two years ago where they attempted to sequester the judges in Guantanamo to try and make the cases move faster. There was an issue over the summer where the judges were no longer given preferential travel treatment–they had to travel with everyone else– and the judges essentially went on strike until they got their own boat back.
There are issues big and small with the commissions because it’s just not a regular process. No one person is in charge and there are no ordinary expectations about how things are supposed to go. And that’s what defines a court system. All three of those: you know who is in charge, you have precedents to rely upon, and you have relationships that you rely upon as well, to make sure that things move smoothly when you hit unexpected bumps. That is how court systems generally work and the military commissions have none of that. Everything is being made up on the fly. No one person is in charge and there are numerous government actors that have not just an indifference to the proceedings, but an incentive to interfere with them in different ways. And that’s causing constant problems.
- Q: Assume GTMO is closed, and all ongoing cases are resolved. Sometime after that, an enemy combatant is detained fighting American forces. When should that person be brought to the federal court system?
MP: When you want to prosecute them. And that’s not some airy speculation. That has been happening since about 2006. There is a case that was argued yesterday in the Fourth Circuit Court of Appeals [12/5/2017, United States v Hamidullin]. Hamidullin was a Taliban commander in Afghanistan, charged and convicted in Virginia federal court with firing missiles at aircraft and fighting U.S. forces. That was treated as a federal crime. He is litigating an important issue about whether or not he has legal combatant status. He’s lost that so far, but he has a plausible claim. I think the best evidence that federal courts work well is that most people don’t know about these cases. Unless you follow this law very closely, you don’t even know these cases are ongoing.
- Q: Have any of the federal cases you are referencing, where courts have proven themselves adept at handling these complex issues, been capital cases?
MP: No, I don’t think so.
- Q: If you believe that Nashiri, or KSM [accused of planning the 9/11 attacks] should be executed, is there reason to believe such sentence can be reached in a federal court?
MP: The federal court system can handle capital cases, generally speaking. They handle terrorism cases, including complex terrorism cases, such as Timothy McVeigh.
- Q: Right, federal courts certainly hear capital cases, but if you take cases from Guantanamo, could they be capital cases?
MP: I think it would be very difficult to make them capital cases, in part because of the torture issues. But if you decided that we are not going to treat these cases as capital, they would be done within a year.
- Q: But if you take the position that these defendants deserve the death penalty, if anyone does?
MP: Moussaoui [Al Qaeda member arrested on immigration charges while attending flight training prior to the attacks on 9/11; convicted for involvement in the 9/11 attacks] was a capital case in Virginia, but the jury voted against the death penalty. McVeigh is the last death sentence I can remember being handed out in a terrorism case from a federal court system, but the federal courts have a track record of handling capital cases. Military courts by contrast barely handle capital cases. When the death sentence is imposed, it is generally overturned on appeal. In fact, the military has not executed anyone since 1961. To the extent that the military doesn’t have a lot of experience in complex cases or even serious crime felony cases, they have even less experience and a worse track record in capital cases.
This is just an editorial judgment: But I don’t think any defendants in the 9/11 case will ever be executed. There’s too much error in the record in the military commission already to sustain the death penalty.
- Q: Going back to closing GTMO: some people who were released from Guantanamo have gone on to attack American forces and American civilians.
MP: Yes, there is some evidence of that. I don’t know the details, but some of the complicating factors include the definition used for “reengagement against the United States.” The standard for that is quite malleable and a bit vague. For example, there’s a British former Guantanamo detainee who is anti-Guantanamo advocate. They categorize him as having returned to the fight because he is described as having promoted anti-American views. Is that returning to the fight? I tend to think that’s a little overwrought. But let me clarify: I’m not saying that there’s no risk, but most of those people during the Bush administration were a lot younger and current Guantanamo detainees are outside the age range where crimes are usually committed.
There are seven billion people in the world. Tens of thousands, hundreds of thousands of them would probably be willing to do harm to the United States or U.S. interests in some way. And the question is, why do we spend so much of our mental energy and resources worrying about the particular group of people in Guantanamo, if we send them to Algeria or to Yemen, as opposed to any number of people who are already in Algeria or Yemen or Afghanistan who may pose or likely pose a far more significant danger?
Additionally, and to be clear, I don’t think you have to just release people. Under the laws of war, you don’t have to release people who you think are going to fight against you. But the mere hypothetical risk that there is going to be some recidivism in some cases is the wrong answer. It doesn’t justify holding a bunch of people who we don’t actually think pose a genuine risk to us.
- Q: Is there a percentage of recidivism that you would say is unacceptable?
MP: I just think it’s the wrong question. Again, the law of war does not require you to release someone who will pose a danger to you. The burden is not high to hold someone if you believe they are genuinely going to pose a danger, when you make an individualized determination.
A lot of people in Guantanamo were cases of mistaken identity. They were foreigners in Afghanistan, which was the single most important criteria that could get you to Guantanamo. If you were in Afghanistan as a Bangladeshi day laborer, that would have made you a target for a capture and potentially a transfer to Guantanamo.
You can prevent people from returning to the conflict, but you should have a rational way of doing it. You may make mistakes, and sometimes, you may not make mistakes: if you release someone from Guantanamo and send them back to Yemen, well, Yemen has changed a lot since 2004. Maybe that individual changed a lot, maybe they lost their job in Yemen, maybe they lost their wife, maybe they encountered something that made them want to carry out a violent act that had nothing to do with being Guantanamo.
Around thirty of the former Guantanamo detainees were Chinese Muslims (Uyghurs), from eastern China, who are a persecuted minority in China. They are actually pro-.U.S., but seen as a national security threat to the Chinese. Some of them were released to Bermuda, some were sent to Albania. Unlike a prison, where, with the exception of the wrongfully convicted, everyone has violated the law, the arbitrariness of the way people were sent to Guantanamo [changes the recidivism calculus]. A lot of people that went to Guantanamo went for no good reason.
- Q: Any advice for law students who want to achieve similar career goals?
MP: The best advice I can give is the advice that worked for me. Maybe it will work for you: if you really enjoy this area of law, know that it can be a bit tricky to get into. It can be competitive, in part because it is small. There are two avenues of approach: government and non-government (the ACLU, etc.). The advice I always give people is, to the extent that you can, if you enjoy doing something, do it for free and be useful to people who are doing things that you want to do at some point of your life. If you build experience and relationships, and you do a good job, eventually people will pay you to do it. When you are early in your career, just get experience and learn to be useful.
Francesco Perrone is a second-year law student at Columbia Law School. Prior to beginning law school, he worked in various capacities for the Department of Defense and the Department of State.