Observing Military Commissions in Guantánamo

The New York City Bar Association has been active in observing and commenting on Military Commission proceedings in Guantánamo Bay, Cuba. In the past year, the City Bar successfully applied for regular observer status and sent an in-person observer to six proceedings, including arraignments, pre-trial conferences, and a guilty plea. Each time a military charter flight has left from Andrews Air Force Base, carrying prosecutors, military and civilian defense lawyers, habeas corpus counsel, their support teams, non-governmental observers, and members of the media, all bound to spend about a week at Naval Station Guantánamo Bay, a City Bar member has been onboard.

Instituted pursuant to President Bush’s November 13, 2001, Military Order, the first contemporary Military Commission terrorism prosecutions began in 2004. In a December 2001 report,  the New York City Bar analyzed the Military Order, expressing concern about extending the scope of the prosecutions to individuals apprehended far from the battlefield, and about significant procedural deficiencies. Our report strongly influenced similar criticism by the American Bar Association in early 2002. The City Bar also again challenged the proceedings’ compliance with Common Article 3 of the Geneva Conventions, in a series of amicus curiae briefs  (Hamdan brief 1; Hamdan brief 2; Hamdan brief 3) supporting the habeas corpus petition of Salim Hamdan, a position the United States Supreme Court agreed with in Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

As the Military Commissions Act and the accompanying Manual for Military Commissions were developed and amended, the City Bar continued regular advocacy before Congress in this area. Michael Mernin, then Chair of the Military Affairs and Justice Committee, provided testimony to the Senate Armed Services Committee in 2006. (Read more testimony here.) The City Bar urged procedural transparency in both the Commissions themselves and in the creation of the Military Commissions Act (7/7/06 letter; 9/15/06 letter; 10/11/06 letter3/12/08 letter),  safeguards for the professional responsibility obligations of defense lawyers, and substantive restrictions on the type of offense prosecuted.   The City Bar has also opposed enactments that would limit the authority of Article III Courts over individuals suspected of terrorism (4/3/07 letter; 3/1/10 letter).