Guantanamo military commission

The Guantanamo military commissions are military tribunals created by the Military Commissions Act of 2006 for prosecuting detainees held in the United States Guantanamo Bay detainment camps.

History

The American Bar Association announced in 2002 during the Bush administration 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 Qaeda 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]

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 "unlawful enemy combatants" thus making them subject to military commissions, where they have fewer civil rights than in regular trials.

On June 29, 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, including the Geneva Conventions.^[2]

Quoting the opinion (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.^[3]

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:

• Unlike civilian courts, only two-thirds of the jury needs to agree in order to convict someone under the military commission rules. This includes charges such as supporting terrorism, attempted murder, and murder.^[4]

• The accused are not allowed access to all the evidence against them. The Presiding Officers are authorized to consider secret evidence the accused have no opportunity to refute.^[5]

• 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.^[6] However, legally the commission is restricted from considering any evidence extracted by torture, as defined by the Department of Defense.^[7]
• The proceedings may be closed at the discretion of the Presiding Officer, so that secret information may be discussed by the commission.^[8]
• 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.^[9]
• 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.^[10]

Commission Cases

| | | |- |Noor Uthman Muhammed |One count of providing material support for terrorism; conspiracy |Plea of guilty to all counts

Boycott of Military Commissions

In 2006, after charges were laid against a number of detainees a boycott against the judicial hearings was declared by Ali al-Bahlul. The boycott gained momentum in 2008 when more detainees faced Guantanamo military commissions. Public confidence in the fairness of the trials reached all-time lows after the boycotts began.^[14]

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), at least four other officers (between eight and eleven in capital cases), 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.

Legal advisors

There have been three individuals who have held the position of legal advisor to the civilian in charge of the Office of Military Commissions: Brigadier General Thomas Hemingway, Brigadier General Thomas W. Hartmann and Mr. Michael Chapman.

The lawyers

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^[18]:

• 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;

Suspension and possible revival

On January 22, 2009, new US President Barack Obama, who had said during his 2008 campaign that he would reject the Military Commissions Act if elected,^[3] issued an executive order instructing the Secretary of Defense to immediately take steps sufficient to ensure that no new charges are sworn, or referred to a military commission under the Military Commissions Act of 2006 and the Rules for Military Commissions, and that all proceedings of such military commissions to which charges have been referred but in which no judgment has been rendered, and all proceedings pending in the United States Court of Military Commission Review, are halted.^[19]

On January 29, 2009 the order was overturned. Guantanamo military commission judge, Army Colonel James Pohl, ruled against the order in the case of Abd al-Rahim al-Nashiri. Abd al-Rahim al-Nashiri is one of three Guantanamo Bay inmates known to have been subjected to enhanced interrogation techniques.^[20]

In May 2009, The New York Times reported that the Obama administration is considering the tribunals as an alternative to trying detainees in the regular court system.^[3]

Costs

According to Hindustan Times the electronic equipment that was installed in courtroom number 2 cost $4 million USD.^[21]

See also

• List of resignations from the Guantanamo military commission
• Boycott of Guantanamo Military Commissions
• Combatant Status Review Tribunal
• Administrative Review Board
• Command responsibility
• court martial
• Geneva Conventions
• Illegal combatant
• Jus ad bellum
• Jus in bello
• Lawfare
• Military law
• War on Terror
• Military Police: Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees

References

External links

• Official Site
• "Defense Department Picks Officials for Military Tribunal Posts: Appointing authority, legal advisor, review panel members named". United States Department of Defense. December 30, 2003. http://usinfo.state.gov/dhr/Archive/2003/Dec/31-861825.html. Retrieved 2007-10-14. 
• Amnesty International
• John D. Altenburg, Defense Department Briefing on Military Commission Hearings, Department of Defense, August 17, 2004
• Military Tribunals: Historical Patterns and Lessons, CRS Report for Congress July 9, 2004
• James Meek, US fires Guantánamo defence team, The Guardian, December 3, 2003
• American Bar Association Task Force on Terrorism and the Law Report and Recommendations on Military Commissions: January 4, 2002(PDF)
• At Gitmo, still no day in court: How feds avoid hearings for terror suspects — despite Supreme Court ruling, Newsday, June 15, 2005
• Leaked emails claim Guantánamo trials rigged Australian Broadcasting Corporation August 1, 2005*Leaked emails claim Guantánamo trials rigged Australian Broadcasting Corporation August 1, 2005
• UK resident released from Guantanamo, Breaking Legal news, April 1, 2007
• Rules Are Strict for Journalists Covering Gitmo
• Human Rights First; Undue Process: An Examination of Detention and Trials of Bagram Detainees in Afghanistan in April 2009 (2009)
• Human Rights First; Arbitrary Justice: Trial of Guantánamo and Bagram Detainees in Afghanistan (2008)
• Human Rights First: In Pursuit of Justice; Prosecuting Terrorism Cases in the Federal Courts (2009)
• Kevin J. Barry (2003-11). "Military Commissions: Trying American Justice". Army Lawyer. Archived from the original on 2009-08-01. http://www.webcitation.org/query?url=http%3A%2F%2Fwww.loc.gov%2Frr%2Ffrd%2FMilitary_Law%2Fpdf%2F11-2003.pdf&date=2009-08-01. Retrieved 2009-08-01. 
• Frederic L. Borch III (2003-11). "Why Military Commissions Are the Proper Forum and Why Terrorists Will Have “Full and Fair” Trials: A Rebuttal to Military Commissions: Trying American Justice". Army Lawyer. Archived from the original on 2009-08-01. http://www.webcitation.org/query?url=http%3A%2F%2Fwww.loc.gov%2Frr%2Ffrd%2FMilitary_Law%2Fpdf%2F11-2003.pdf&date=2009-08-01. Retrieved 2009-08-01. 
• Kevin J. Barry (2003-11). "Editorial Comment: A Response to Why Military Commissions Are the Proper Forum and Why Terrorists Will Have “Full and Fair” Trials". Army Lawyer. Archived from the original on 2009-08-01. http://www.webcitation.org/query?url=http%3A%2F%2Fwww.loc.gov%2Frr%2Ffrd%2FMilitary_Law%2Fpdf%2F11-2003.pdf&date=2009-08-01. Retrieved 2009-08-01. 
• Mix and Match at the Guantanamo Military Commissions