Military tribunal
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A military tribunal is a kind of military court designed to try members of enemy forces during wartime, operating outside the scope of conventional criminal and civil matters. The judges are military officers and fulfill the role of jurors. It is distinct from the court martial.
A military tribunal is an inquisitorial system based on charges brought by a military authority, prosecuted by a military authority, judged by military officers, and sentenced by military officers against a member of an adversarial force.
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[edit] Military tribunals in the United States
The United States has, infrequently, made use of military tribunals or commissions, rather than rely on a court martial, within the military justice system. General George Washington used military tribunals during the American Revolution.
President Abraham Lincoln used military tribunals during the American Civil War. Military tribunals were often used to try Native Americans who fought the United States during the Indian Wars; the thirty-eight people who were executed after the Sioux Uprising of 1862 were sentenced by a military tribunal.
President Franklin D. Roosevelt ordered military tribunals for eight German prisoners accused of planning sabotage in the United States as part of Operation Pastorius. Roosevelt's decision was challenged, but upheld, in Ex parte Quirin. All eight of the accused were convicted and sentenced to death. Six were executed by electric chair at the District of Columbia jail on August 8, 1942. Two who had given evidence against the others had their sentences reduced by Roosevelt to prison terms. In 1948, they were released and deported to the American Zone of occupied Germany.
[edit] Court system
Military tribunals are led by a Presiding Officer designated by the Appointing Authority (which is the Secretary of Defense or other designated authority); the Presiding Officer does not take part in the final court decision.
Charges are brought by the chief prosecutor from the Office of Military Commissions (OMC). Charges that may be brought to a military tribunal range from murder, rape, and other typical crimes, to war-specific crimes, like attacking civilians, using human shields, terrorism, and war crimes in general.
The Military Tribunal Panel is composed of three to seven judging officers, depending on the charges raised against the accused. They act as judges and jurors.
While civilian juries require a unanimity to convict, tribunals only require two thirds majority when no death penalty is involved. For death penalty convictable tribunals, all seven judging officers are required to have a unanimous decision.
The accused is represented by the Office of the Chief Defense Counsel from the Office of Military Commissions (OMC). Defendants may choose an available civilian defense attorney.
Civilian attorneys must be qualified by the Office of Military Commissions before being eligible to be selected by a defendant.
After the end of trial, the tribunal goes onto review by the secretary of defense, who will forward the record of the trial and all recommendations to the president for final decision.
[edit] Jurisdiction
President Bush claims that military tribunals have jurisdiction over any foreign national in the custody of the United States armed forces, no matter how or where they were captured, who has been designated an enemy combatant and charged with crimes by a military authority. This theory of jurisdiction has not been tested in a federal court.
[edit] Controversy
While tribunals can provide for quick trials under the conditions of war, many critics say this occurs at the expense of fair justice.
For military tribunals the rules for admissible evidence are more lax than in civilian trials; hearsay and coerced testimony, if it would have “probative value to a reasonable person,” and evidence kept secret from the defendant and his lawyer (if any) can be used to convict defendants.[1]
Time constraints and the inability to obtain evidence can greatly hamper a case for the defense. Civilian trials must be open to the public, while military tribunals can be held in secret. Because conviction usually relies on some sort of majority quota, the separability problem can easily cause the verdict to be displeasing not only to the defendant, but to the tribunal officials as well.
Decisions made by a military tribunal cannot be appealed to federal courts. The only way to appeal is a petition for a panel of review (which may or may not include civilians as well as military officers) to review decisions, however the President, as Commander In Chief, has final review of all appeals. No impartial arbiter is available.
Although such tribunals do not satisfy most protections and guarantees provided by the Bill of Rights, that has not stopped Presidents from using them, nor the U.S. Congress from authorizing them, as in the Military Commissions Act of 2006. All U.S. Presidents have contended that the Bill of Rights does not apply to noncitizen combatants.
[edit] Trial by military commission of the Guantánamo detainees
President George W. Bush has ordered that the detainees imprisoned at the Naval base on Guantánamo Bay were to be tried by military commissions. This decision has sparked controversy; on June 29, 2006, the U.S. Supreme Court limited the power of the Bush administration to conduct military tribunals to suspected terrorists at Guantánamo Bay. The current military tribunals have been stopped, and the pending 60 other suspects' tribunals have been canceled.
[edit] See also
- Guantánamo military commission
- Military rule
- Military law
- Office of Military Commissions—Office that would administer the trials in Guantánamo
- Captain John Carr—former prosecutor who described the Guantánamo trials as "rigged"
- Major Robert Preston—former prosecutor who described the Guantánamo trials as "rigged"
- Captain Carrie Wolf—former prosecutor who described the Guantánamo trials as "rigged"
- Combatant Status Review Tribunal
- Administrative Review Board
[edit] References
[edit] External links
- Official DoD site describing the history or Military Commissions
- Congressional Research Service (CRS) Report "Military Tribunals: Historical Patterns and Lessons"
- Military Tribunals - legal news and resources, JURIST
- Terrorism and the Laws of War: Trying Terrorists as War Criminals before Military Commissions (.pdf), Congressional Research Office - Library of Congress, December 11, 2001
- Analysis: Military Tribunals,, BBC, March 4, 2003
- Prosecutor doubts over Guantánamo trials, The Age, September 17, 2004
- Executive Power, Gonzales Style, CBS News, November 23, 2004
- Leaked emails claim Guantánamo trials rigged, The Age, August 1, 2005
- Third prosecutor critical of Guantánamo trials, The Age, August 3, 2005
- The Guantánamo Trials, Washington Post, September 7, 2005
- Guantánamo Process as a Public Danger, JURIST, October 11, 2005
