Military tribunals

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As of June 2005, there were approximately 520 men being held in the U.S. military prison in Guantanamo Bay as enemy combatants (see The Enemy Combatant Cases). In November 2001, President Bush issued an executive order authorizing military tribunals for prisoners related to his "war on terror." Any defendant who (a) is not a US citizen; (b) has been accused of engaging in acts of terrorism; or (c) has knowingly harbored someone accused of an act of terrorism; is subject to trial by military tribunal.

It should be noted that the 1993 WTC bombing defendants, the 1998 African embassy bombing defendants, and Zacarias Moussaoui received trials in US Federal Courts. Therefore, the US does not need a separate, extra-Constitutional system for trying those accused of terrorism.


Contents

First Tribunal System

In 2003, the Bush administration established military tribunals to try Guantanamo Bay prisoners.

The tribunals are not subject to the Uniform Code of Military Justice and differ from U.S. criminal courts in several respects:

1. Evidentiary rules: hearsay statements and statements which were taken under duress (torture) are allowed if the tribunal panel considers this evidence related to the case and reasonable. Prosecutors are not required to prove "chain of custody." Unsworn statements deemed relevant and reasonable are also admissible.
2. Verdicts: unanimous verdicts are only required in capital cases. All other cases require a two-thirds majority for a conviction.
3. Sentencing: if a defendant is exonerated, the defendant can be sent back to Guantanamo Bay until the "war on terror" is over, resulting in detainment of exonerated defendants for an unspecified period of time.
4. Jury: juries consist of three to seven military officers rather than the 12-member panel of "peers" which criminal defendants in the US normally receive.
5. Right to counsel: Tribunal defendants are entitled to military counsel and can only access civilian counsel if they can pay for it.
6. Appeals: Tribunal defendants cannot appeal decisions of the tribunal to federal court. They are entitled to petition a panel of review. They can petition for a final review by the President of the US, as commander-in-chief.

On July 16, 2005, the U.S. Court of Appeals for the District of Columbia upheld the constitutionality of these tribunals. Bush's Supreme Court nominee, John Roberts, was part of this 3-judge panel. The propriety of Robert's involvement, considering his looming Supreme Court nomination and consultation with Alberto Gonzales, is questionable. In July 2006, the Supreme Court ruled against the adminstration in Hamdan v. Rumsfeld, and found that the military tribunals are unconstitutional. Afterwards, the Defense Department said that all detainees would be covered by Article 3 of the Geneva Conventions.

Second Tribunal System

Shortly after the Supreme Court's decision in July 2006, the 109th Congress passed the Military Commissions Act of 2006, which gave the President legal authority to establish a new system of military tribunals. Trials began in March 2007, when Australian David Hicks plead guilty, and was sent home to serve out his sentence, in a move widely seen as a political favor to Australian Prime Minister and Bush supporter, John Howard. In May of 2007, the system began to fall apart when charges were dismissed against the next two prisoners. (Source: Charges dismissed against Gitmo prisoner, AP News, June4, 2007).

The US Court of MIlitary Commission Review began reinstating charges that had been dismissed in May, beginning with Canadian Omar Khadr, on September 24, 2007. (Source: Khadr military commission charges reinstated)

On June 11, 2007, a panel of the Fourth Circuit U.S. Court of Appeals ruled on the case of Ali Saleh Kahlah al-Marri, and held that the Military Commissions Act of 2006 does not rescind the right of habeas corpus for a lawful resident alien, living in the United States. al-Marri was a Qatari citizen, living legally in the U.S., who was arrested in Peoria, IL in December 2001, and held as an alledged material witness to the 9/11 attacks. After 18 months he was classified as an enemy combatant, and placed into military custody. The Appeals court ruling means that al-Marri will be returned to the civilian justice system. Their ruling said "For in the United States, the military cannot seize and imprison civilians -- let alone imprison them indefinitely." (Source: Human Rights First).

Lt. Col. Stephen E. Abraham, an Army reservist, criticized the tribunal system as "deeply flawed". He said “The classified information, was stripped down, watered down, removed of context, incomplete and missing essential information.” Abraham is a lawyer and intelligence analyst, who was the database administrator for the central depository of evidence for the tribunals. His previous work resulted in the capture of Soviet agents. (Source: Unlikely Adversary Arises to Criticize Detainee Hearings, by William Glaberson, New York Times, July 23, 2007). A second officer reiterated those charges later in the year. (Source: Second Army Officer Faults Gitmo Panels).

The U.S. Supreme Court refused to hear an appeal from Guantanamo detainee Hamdan, which challenged the constitutionality of the military commission system. (October 1, 2007) However, it heard arguments in Boumediene v. Bush, which will decide whether Guantanamo prisons have habeus corpus rights.

In December 2007, a military commissions judge ruled that any prisoners who claim to be POWs must be treated according to the Geneva Conventions until a competent tribunal finds that they are not POWs. He further held that Combantan Status Review Tribunals are not compentent to conduct that review. (Source: Due process at Guantánamo.)

Daily Kos Diaries on the Topic of Military Tribunals

Federal Appeals Court Okays Military Tribunals for Gitmo Prisoners

"GITMO Trials Rigged" Claim Former Mil. Prosecutors

Gitmo Prosecutors Quit in Protest

Another US Prosecutor Resigns from Gitmo

Guantánamo Update: Reviewing the Review Tribunals

External Links

  • Army officer says Gitmo panels flawed, San Francisco Chronicle, June 22, 2007. An Army officer who served on a Combatant Review Status Tribunal said that he was pressured to find against the defendant, in spite of scanty or non-existant evidence.
  • The end of Bush's kangaroo courts?, By Jennifer Daskal, Salon.com, June 6, 2007.
  • Booman Tribune Why Didn't Judge Roberts Recuse Himself?
  • Leaked emails written by Guantanamo Bay military prosecutors expressing doubt about the legality and fairness of the tribunal trials
  • 60 Minutes Report on Guantanamo Bay tribunals
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