Guantanamo military commission

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Major Elizabeth Kubala Spokesperson for the Office of Military Commissions gives a press briefing.
Major Elizabeth Kubala Spokesperson for the Office of Military Commissions gives a press briefing.
Court room where initial Guantanamo military commissions convened.
Court room where initial Guantanamo military commissions convened.

Military commissions are among procedures planned by the U.S. Bush administration to deal with detainees it links to al-Qaeda. On September 28 and September 29, 2006, the US Senate and US House of Representatives, respectively, passed the Military Commissions Act of 2006, a controversial bill that allows the President to designate certain people with the status of enemy combatants thus making them subject to military commissions, where they have fewer civil rights than in regular trials.

The American Bar Association announced that: "In response to the unprecedented attacks of September 11, on November 13, 2001, the President announced that certain non-citizens (of the USA) would be subject to detention and trial by military authorities. The order provides that non-citizens whom the President deems to be, or to have been, members of the al Qaida organization or to have engaged in, aided or abetted, or conspired to commit acts of international terrorism that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States or its citizens, or to have knowingly harbored such individuals, are subject to detention by military authorities and trial before a military commission."[1]

Contents

[edit] Supreme Court judgment

On 29 June 2006, the Supreme Court handed down its decision in the case "Hamdan v. Rumsfeld" Docket 05-194, with a 5-3 decision for Salim Ahmed Hamdan, effectively declaring that trying Guantanamo Bay detainees under the Guantanamo military commission (known also as Military Tribunal) was illegal under US law and the Geneva Conventions.[2]

Quoting the judgement (Paragraph 4, page 4), "4. The military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ (Uniform Code of Military Justice) and the four Geneva Conventions signed in 1949." Ultimately the Supreme Court ruled that President George W. Bush does not have the sole authority to hold tribunals and is required to get authorization to do so from the United States Congress.

With the War Crimes Act in mind, this ruling presented the Bush administration with the risk of criminal liability for war crimes. To address these legal problems, among other reasons, the Military Commissions Act was adopted.

[edit] Comparison with the American justice system

The United States has two parallel justice systems, with laws, statutes, precedents, rules of evidence, and paths for appeal. Under these justice systems prisoners have certain rights. They have a right to know the evidence against them; they have a right to protect themselves against self-incrimination; they have a right to legal counsel; they have a right to have the witnesses against them cross-examined.

The two parallel justice systems are the Judicial Branch of the US Government, and a slightly streamlined justice system named the UCMJ (Uniform Code of Military Justice) for people under military jurisdiction. People undergoing a military court martial are entitled to the same basic rights as those in the civilian justice system.

The Guantanamo military trials do not operate according to either system of justice. The differences include:

  • The accused are not allowed access to all the evidence against them[citation needed]. The presiding officers are authorized to consider secret evidence the accused have no opportunity to refute[citation needed].
  • It may be possible for the commission to consider evidence that was extracted through coercive interrogation techniques before the enactment of the Detainee Treatment Act.[3] However, legally the commission is restricted from considering any evidence extracted by torture, as defined by the Department of Defense.[4]
  • The Appointing Officer in overall charge of the commissions is sitting in on them. He is authorized to shut down any commission, without warning, and without explanation.
  • The proceedings may be closed at the discretion of the Presiding Officer, so that secret information may be discussed by the commission.
  • The accused are not permitted a free choice of attorneys, as they can only use military lawyers or those civilian attorneys eligible for the Secret security clearance.[5]
  • Because the accused are charged as unlawful combatants, former Secretary of Defense Donald Rumsfeld stated that an acquittal on all charges by the commission is no guarantee of a release.[6]

[edit] The accused

The USA has charged ten detainees:

Detainee Charges Dates Allegations
David Matthew Hicks material support for terrorism
Salim Ahmed Hamdan
  • Osama bin Laden's driver
  • Served as one of Osama bin Laden's bodyguards
  • charges dismissed without prejudice June 4, 2007
Ali Hamza Ahmed Sulayman al Bahlul — —
Ibrahim Ahmed Mahmoud al Qosi — —
  • An Al Qaeda paymaster
  • Ran an Al Qaeda front company
  • Osama bin Laden's driver
  • Served as one of Osama bin Laden's bodyguards
Omar Khadr
  • murder
  • attempted murder
  • aiding the enemy
  • conspiracy
  • threw a grenade that killed Christopher J. Speer
  • shows how to plant land mines in a video
  • scouted territory occupied by the USA
Sufyian Barhoumi attempted murder charged on November 8, 2005
  • trained al Sharbi and al Qahtani in how to build remote controlled bombs
  • captured together with Abu Zubaydah
Ghassan Abdullah al Sharbi attempted murder charged on November 8, 2005
Jabran Said bin al Qahtani attempted murder charged on November 8, 2005
  • wrote a training manual on how to build bombs
  • captured together with Abu Zubaydah
Binyam Ahmed Muhammad attempted murder charged on November 8, 2005
Abdul Zahir
  • conspiracy
  • aiding the enemy
  • attacking civilians[9]

charged on January 20, 2006
  • threw a grenade that wounded journalists.
  • paymaster for an al Qaeda cell
  • reproduced al Qaeda leaflets
  • captured together with Abu Zubaydah
Mohamed Jawad
  • attempted murder in violation of the laws of war
  • intentionally causing injury

charged on October 11, 2007
  • Claims he was recruited to help clear land mines, but was then drugged, and dragged along to a bazaar, carrying an object in his pocket that he was to later learn was a grenade.[10][11][12][13]
  • A grenade was tossed, injuring two Americans and an Afghan interpreter.[10][11][12][13]
  • Was a minor who ran away from home to take this lucrative job clearing land mines when the attack took place.[10][11][12][13]

Several other detainees may be charged.

[edit] The commission members

Initially the identity of the commission members were to be kept hidden, and the commission was to consist of a Presiding Officer (a lawyer), four other officers, and one alternate.

The structure of the commission was radically revised in late 2004. The impartiality of five of the officers was challenged, and two of the officers were removed. All five officers of the commission have an equal vote, the Presiding Officer performs the additional role of administering the trial, much as a judge would in a civil trial.

Peter Brownback Colonel (retired)
  • President of the Commissions for David Hicks, Salim Hamdan
  • The only lawyer on the commission.
  • A long time friend of the appointing officer.
  • Brownback was criticized for not being an active member of a state bar.
Christopher Bogdan Colonel USAF
R. Thomas Bright Colonel USMC
  • Member of the Commissions for David Hicks, Salim Hamdan
  • Challenged because he assembled lists of detainees bound for Guantánamo and executed war plans in Afghanistan.[14]
  • Remains on the commission.
Curt S. Cooper Lieutenant Colonel US Army
  • Member of the Commissions for David Hicks, Salim Hamdan
  • Admitted referring to the Guantánamo detainees as "terrorists".
  • Admitted being unfamiliar with the Geneva Conventions.
  • Removed from the commission.
Jack K. Sparks Jr. Colonel USMC
Timothy K. Toomey Lieutenant Colonel USAF
  • Member of the Commissions for David Hicks, Salim Hamdan
  • An intelligence officer who was involved in the capture of suspects in Afghanistan.
  • Removed from the commission.
Ralph Kohlmann Colonel USMC

[edit] Legal advisors

Since the officers forming the tribunal were not lawyers they are provided with a team of military lawyers, who they could call of for advice, and who provided an opinion on their decisions. See particularly Moazzam Begg.

Teresa M. Palmer Commander Legal Advisor to the Office for the Administrative Review of the Detention of Enemy Combatants
J.M. McGarrah Rear Admiral Director, Combatant Status Review Tribunal
James R. Crisfield Commander Legal Advisor

[edit] The lawyers

John D. Altenburg General (retired)
  • Appointing authority
  • Will attend all the commissions
  • Has the authority to shut down any commission, immediately, without warning or explanation.
Thomas Hemingway Brigadier General
Peter Brownback Colonel (retired)
  • Commission President (see above)
Ralph Kohlmann Colonel USMC
  • Commission President (see above)
Fred Borch Colonel
  • Chief Prosecutor
  • Leaked memos surfaced that claimed he had bragged about corrupting the fairness of the proceedings.
  • Reported to have claimed the Commission officers were chosen because they could be trusted to convict
  • Reported to have claimed that all the evidence of the suspect's innocence would be classified top-secret, so the defense never learned of it.
  • Resigned his commission.
Robert L. Swann Colonel
  • Chief Prosecutor following Fred Borch.
  • Requested two of the commission officers be removed because they would be biased in favor of conviction.
Dwight H. Sullivan Colonel USMC Reserve
Muneer Ahmad civilian
  • Defending Omar Khadr
  • Professor of law
  • Pro bono service
  • Described great difficulties put in his path by military authorities.[15]
Robert Chester Colonel
John Carr Captain
  • Appointed to serve as a Prosecutor
  • Requested transfer because the proceeding seemed unjust.
  • Promoted after transfer
Morris Davis Colonel U.S. Air Force
Thomas Fleener Major Army Reserve
William C. Kuebler Lieutenant Commander U.S. Navy
John Merriam Captain
Michael Mori Major USMC Reserve
Robert Preston Major
  • Appointed to serve as a Prosecutor
  • Requested transfer because the proceeding seemed unjust.
  • Promoted after transfer
Robert D. Rachlin civilian
Sharon Shaffer —
Philip Sundel —
Charles Swift Lieutenant Commander
Carrie Wolf Captain USAF
  • Appointed to serve as a Prosecutor
  • Requested transfer because the proceeding seemed unjust.
  • Promoted after transfer

[edit] Security precautions

On January 2, 2008 Toronto Star reporter Michelle Shephard offered an account of the security precautions reporters go through before they can attend the hearings[17]:

  • Reporters were only allowed to bring in one pen;
  • Female reporters were frisked if they wore underwire bras;
  • Reporters were not allowed to bring in their traditional coil-ring notepads;
  • The bus bringing reporters to the hearing room is checked for explosives before it leaves;
  • 200 metres from the hearing room reporters dismount, pass through metal detectors, and are sniffed by chemical detectors for signs of exposure to explosives;
  • Only eight reporters are allowed into the hearing room -- the remainder watch over closed circuit TV;

[edit] See also


[edit] References

  1. ^ "American Bar Association Task Force on Terrorism and the law report and recommendations on Military Commissions", American Bar Association, January 4, 2002. Retrieved on 2007-12-16. 
  2. ^ Syllabus: Hamdan v. Rumsfeld, Secretary of Defense. Supreme Court of the United States (October 2005). Retrieved on 2007-12-17.
  3. ^ FAQs about the Military Commissions Act. The Center for Victims of Torture. Retrieved on 2007-12-17.
  4. ^ Military Commission Instruction No. 10. United States Department of Defense (March 24, 2006). Retrieved on 2007-12-16.
  5. ^ Trial Guide for Military Commissions. United States Department of Defense (17 August 2004). Retrieved on 2007-12-17.
  6. ^ Donald Rumsfeld, Richard Myers. "Transcript: Defense Secretary Donald Rumsfeld and General Richard Myers, briefed reporters March 28 at the Pentagon.", United States Embassy, Canberra, March 28, 2002. Retrieved on 2007-12-17. 
  7. ^ "U.S. military charges Omar Khadr with murder", CTV, November 8, 2005. Retrieved on 2007-12-17. 
  8. ^ "Khadr faces military trial", Toronto Star, December 2, 2005. Retrieved on 2005-12-02. 
  9. ^ "US brings charges against 10th Guantánamo prisoner", Reuters, January 20, 2006. Retrieved on 2007-12-16. 
  10. ^ a b c William Glaberson. "Charges filed against guantánamo detainee", International Herald Tribune, October 11, 2007. Retrieved on 2007-10-12. 
  11. ^ a b c "US to charge Guantanamo detainee with attempted murder", AFP:, October 13, 2007. Retrieved on 2007-10-13. 
  12. ^ a b c ("US to charge Guantanamo detainee with attempted murder", The International News, October 13, 2007. Retrieved on 2007-10-13. 
  13. ^ a b c Andy Worthington. "The Afghani Teen Put to Trial at Guanátanmo: The Case of Mohamed Jawad", Counterpunch magazine, October 17, 2007. Retrieved on 2007-10-25. 
  14. ^ "Three Guantánamo panelists dismissed over bias allegations", USA Today, October 21, 2004. Retrieved on 2007-12-17. 
  15. ^ "At Gitmo, still no day in court: How feds avoid hearings for terror suspects — despite Supreme Court ruling", Newsday, June 15, 2005. Retrieved on 2007-12-17. 
  16. ^ "U.S. prosecutor in Khadr case blasts sympathetic views of Canadian teen", CBC, January 10, 2006. Retrieved on 2007-12-16. 
  17. ^ Michelle Shephard. "Guantanamo hearings try patience: Underwire bra, extra pen among items unpopular with military overseers at terrorist suspects' trials", Toronto Star, January 2, 2008. Retrieved on 2008-01-04. 

[edit] External links