As the Obama Administration struggles with the details of how to close the prison at Guantanamo, and especially, what legal processes should be used to determine the fates of the remaining prisoners, we see nearly daily speculation on the potential structure of military commissions and the prospect of some prisoners remaining in detention indefinitely without ever being charged with a crime. An especially clear voice has come to the fore in these discussions recently, delivering riveting testimony at a hearing of the House Judiciary Committee (pdf) and in a more recent guest column at Salon.com. Major David Frakt has represented a number of defendants at Guantanamo, so he has had a first-hand view of the administration of justice in the proceedings at Guantanamo. He warns us quite clearly that justice is not being served.
It was against a background of thoughts about the perversions of justice being considered by our country that I watched an old episode of “Star Trek: The Next Generation”. For the few of you who are unfamiliar with the Star Trek brand, it should be pointed out that what started as a television series in the 1960’s has grown to a large number of later television series, many successful movies and enough books to merit their own section in most bookstores. Set in a future that includes space travel and contact with a large number of inhabitants of other planets, Star Trek envisions a future semi-utopia where poverty and disease have been defeated. Wars, however, still exist and battles occur frequently between the United Federation of Planets (based on Earth and an obvious successor to the United States) and various enemies.
Star Trek broke many barriers beginning with the initial series. It was quite scandalous that the original cast was integrated racially and sexually. The fact that a woman of color (Uhura) was in a position of authority in the spaceship’s senior staff was stunning. Furthermore, at the height of the Cold War, another of the senior staff was Russian (Chekov). One of the more consistent themes throughout Star Trek is the concept of justice, whether it is social justice or criminal justice.
The Next Generation series was the second Star Trek series and the episode I am writing about first aired in 1991, as the first Gulf War was being fought. The series is set in the 24th century on the flagship of the Federation’s fleet, the USS Enterprise. In this episode, a spy has been discovered on the ship and he has managed to transmit sensitive information to an enemy race, the Romulans. At the same time, there has been an explosion on the ship and sabotage is suspected. As the investigation of these events proceeds, the Captain of the ship, Jean-Luc Picard, is joined by a very high-ranking officer from Starfleet, Admiral Satie and later also by Admiral Henry. When the investigation expands to accuse a young member of the medical staff, Picard begins to have misgivings about the accusations being made and the nature of the evidence on which they are based. Fortunately, the script of this episode is posted on the internet. Here is a conversation between Picard and his head of security, Lt. Worf:
What is going on here?
Captain… I am conducting the investigation of Simon Tarses.
Picard regards him solemnly, moves to the window.
What has happened to us, Mister Worf?
I think… we’re putting on a drumhead trial…
I don’t understand…
Five hundred years ago military officers would upend a drum on the battlefield… sit at it and dispense summary justice…decisions were quick…punishments severe… appeals denied. Those who came to a drumhead were doomed.
The discussion continues a bit later:
If a man is not afraid of the truth, he would answer.
No. We must not let ourselves think that. The Seventh Guarantee is one of the most important rights granted by the Federation. We cannot use one of the fundamental principles of our Constitution and turn it against a citizen.
Worf is struggling to understand.
Sir… the Federation does have enemies… we must seek them out…
Yes… that’s how it starts. But the road from legitimate suspicion to rampant paranoia is shorter than we might think. Something is wrong here, Worf… I don’t like what we have become.
Compare the fictional Picard’s concerns above with those of the real Major Frakt in the Salon.com column:
The real reason the Bush administration created the military commissions was so that it could have a forum in which American standards of due process did not apply and convictions could be obtained under summary procedures using evidence that would not be admissible in a regular court of law. The Obama administration has now rightly concluded that constitutional due process standards should apply to military commissions. Modifying the military commissions to comport with due process and the rule of law will mean eliminating the very reason for their existence. Partially amending them will only result in many more years of protracted litigation.
Among the 200 plus detainees still at Guantánamo, there are perhaps a few dozen who have committed serious offenses. I have yet to hear any compelling reason why any of these men could not be prosecuted under existing law in federal court. Of course, if the only evidence of criminality by an individual was obtained through torture and coercion, then that person is unlikely to be convicted in a federal court. But if that is all the evidence we have, then we shouldn’t be prosecuting anyway, whether in a civilian court or a military commission. If the abandonment of the rule of law that resulted in the egregious abuse of detainees may mean that a few "bad men" cannot be prosecuted, perhaps that will serve as a deterrent to such deviations from our core values in the future.
The bottom line is that there are simply no advantages to military commissions and no compelling reasons to keep them. Military commissions are not faster, more efficient or less costly than the alternative. Military lawyers have no special expertise in prosecuting or defending complex international terrorist conspiracies. Try the terrorists where they should have been tried all along, in U.S. District Courts.
Returning to the episode of Star Trek, because he objects to the way the investigation is proceeding, Captain Picard himself is summoned before Admiral Satie. He addresses the hearing:
I am deeply concerned by what is happening here. It began when we apprehended a spy, a man who admitted his guilt and who will answer for his crime. But the hunt didn’t stop there. Another man, Simon Tarses, was brought to trial — and it was a trial, no matter what others may call it.
He pauses, picking his way carefully through this mine field.
Unfortunately, it was a trial based on insinuation and innuendo. Nothing substantive against Crewman Tarses was offered, much less proven.
He walks toward Tarses, who sits in the audience.
This man has a Romulan grandfather. For that, his career stands in ruins. Have we become so fearful? Have we become so cowardly that we must extinguish a man because he carries the blood of a current enemy?
He paces back and forth in front of the table.
I remind you… we are not descended from cowardly people. We come from those who were willing to think the unthinkable, speak the unspeakable… and to defend with passion ideas and causes which were, at the moment, unpopular.
He moves toward Satie, a final, urgent plea.
Admiral, let us not condemn Simon Tarses or anyone else on the basis of half-truth. I implore you…do not continue with this proceeding. End it here.
Satie does not end the hearing and proceeds to interrogate Picard. Picard recites back to the Admiral words penned by her own father and prompts such an outburst from Satie that Admiral Henry is so offended that he walks out:
There is a saying… which many of us have heard since we were school children… "With the first link, the chain is forged. The first speech censured, the first thought forbidden, the first freedom denied — chains us all, irrevocably."
Two bright spots have appeared on Norah Satie’s cheeks.
Her eyes burn into Picard.
Those words were uttered by Judge Aaron Satie — as wisdom and warning. The very first time any man’s freedoms are trampled…we are all damaged.
I fear… that today… on this starship… we are forging that chain.
33A ON SATIE
How dare you — you who consort with Romulans… invoke my father’s name to support your traitorous arguments… It is an offense… to everything I hold dear… to hear those words used to subvert the United Federation of Planets.
My father was a great man… his name stands for principle, and integrity… you dirty that name by speaking it…
The Admiral is now staring at her, dismayed by what she is saying.
He loved the Federation…but you, Picard… corrupt it…you and those like you undermine our very way of life…
The Admiral wants no more of this debacle. He rises and starts for the door.
I will expose you for what you are… I’ve brought down bigger men than you, Picard…
This outburst brings the hearing to a stop. Here is the final scene:
It’s over. Admiral Henry has called an end to any more hearings on this matter.
Admiral Satie… has left the Enterprise.
Picard swivels his chair around to face Worf.
We think we have come so far…the torture of heretics and the burning of witches is ancient history… and then… before you can blink an eye… it threatens to start all over again.
I believed her… I helped her…I didn’t see what she was.
Villains who wear black hats [twirl their mustaches] are easy to spot. Those who clothe themselves in good deeds are well camouflaged.
I think… after yesterday…people will not be as ready to trust her.
Maybe. But it won’t stop her. She — someone like her — will always be with us… waiting for the right climate to flourish…spreading disease [fear] in the name of liberty [righteousness].
Vigilance, Worf. That is the price we must continually pay.
[Differences between the script and the YouTube are noted in brackets.]
Picard’s actions and words seem so applicable to the situation Major Frakt addresses. In his plea to have the Guantanamo prisoners tried in Federal court, rather than in a military commission, much like a drumhead trial, Frakt is appealing to the sense of justice on which our country was founded.
Remarkably, the Star Trek episode even hit on the exceptionalism basis that also was used extensively by the Bush Administration. When Picard was trying to convince Satie to drop the investigation of Crewman Tarses, she said this in response:
But I have a purpose. My father taught me… from the time I was a little girl still clutching a blanket… that the United Federation of Planets is the most remarkable institution ever conceived. It is my cause to make sure that this extraordinary union is preserved…
Over and over in this episode, Satie takes the positions and the language that the Bush Administration and its supporters used to justify their perversion of justice and Picard repeatedly calls these positions out for their basis in fear. Most encouraging, though, is a development the Bush Administration never expected, but which is foreseen in the Star Trek episode. Remember Admiral Henry walking out when the hearing spiraled into an emotional outburst? Here is Frakt:
Despite all the obvious legal shortcomings of the military commissions, they might have succeeded but for one factor the Bush administration never anticipated: Many of the military lawyers assigned the roles of prosecutors, defense counsels and judges in the military commissions refused to collaborate.
Below is a YouTube of many of the most dramatic moments from this episode. I find it impossible to watch these exchanges without seeing how well they anticipated what is happening today. It appears that Picard’s warning to Worf that we must always be vigilant for those who spread fear in the name of righteousness will persist into the 24th century and beyond.