Trial by Military Commission

The perpetrators of the September 11 attacks “don’t deserve to be treated as prisoners of war,” declared US Vice President Cheney, announcing the executive order. “They don’t deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process.” Instead, they deserved to be “executed in relatively rapid order” like German saboteurs tried in secret during World War II by a special military commission—a presidentially ordained tribunal last used to convict General Yamashita of war crimes in 1945, one of the few Japanese generals whom historians now believe was innocent. The United States proposed such a court to Scottish officials as a model for Lockerbie trials but were emphatically rejected because of the court’s palpable unfairness.

It is important to understand that a military commission is not the same as a court-martial—a genuine court in the Anglo-American adversarial tradition used to try members of the armed forces. A special military commission comprises a group of officers ordered by the president, their commander-in-chief, to sit in judgement on certain defendants according to rules set out in Bush’s executive order.

These military commissions are, as the New York Times editorialized, “a breathtaking departure from due process.” They fail to conform with the fair-trial guarantees under the 1950 European Convention on Human Rights, which prevents the extradition to the United States of terrorist suspects captured in Europe. They do not comport with fair trial guarantees in the Universal Declaration of Human Rights or any other human-rights convention, and they breach the minimum due-process safeguards in the 1949 Geneva Convention for Prisoners of War. A trial of Al Qaeda members or Taliban leaders before such a military commission, especially if followed by executions “in relatively rapid order,” would provoke derision and anger throughout the world, much of it from US allies and supporters. The principal objections would result from several inequities in the procedure that the commission would follow.

The commission is not independent or impartial, as required by Articles 84 and 85 of the 1949 Geneva Convention III on the Treatment of Prisoners of War, which the United States has ratified along with 187 other countries. The army officers who serve as judges are paid and promoted by the US Department of Defense, an arm of the government which has alleged the defendants’ guilt and that acts in any event as the government’s detaining power. These officers are commissioned to sit as judges by the president, their commander-in-chief, who has “determined in writing” that the defendants should be prosecuted and who thus has a vested interest in their conviction. There is no appeal, except to the president, who cannot be impartial because the decision appealed against is that of his own tribunal. No normal evidentiary rules or safeguards exist—evidence is admissible if the presiding officer thinks it should be admitted.

One distinguished US judge who recently studied the records of military commissions in Japan after World War II concludes that they “provide a stark example of the potential for abuse when rules of evidence are so flexible as to be non-existent.” The prosecution bears no burden of proof under the commission’s procedure, nor must it meet a standard of “beyond reasonable doubt.” Guilt is simply to be established by evidence “of probative value to a reasonable person.” The officers who form the “jury” need not be unanimous—a vote of two thirds of the commission’s officers will secure a conviction. The jury need not give a reasoned written judgement.

According to reports of draft rules prepared by the US Defense Department, the hearing will be in secret and transcripts will not be made available. The likely result of the proceedings will be a sentence of death, traditionally carried out by an army firing squad. The Defense Department, presumably, will decide whether relatives will be permitted to attend an event that will not be different in essence from the Taliban’s soccer-field executions.

In public forums, such inequities have led to widespread criticism of the military commission as a “kangaroo court”—an appellation offensive to Australians, who know the lovable qualities of this marsupial—but in truth it is not a court at all. It is an extension of the power of the president, who personally or through the officers he commands acts as prosecutor, judge, jury, and court of appeal. In actuality, the military commission is really a government device for execution, which is as summary as it thinks it can get away with, at a time when the US public has ceased to protest about denial of constitutional rights to aliens. Should the Bush administration insist upon this option, it will mark a historic about-face from the position of President Harry Truman, who rejected the military-commission model when it was suggested for Nuremberg. The need to impress upon the rest of the world the true evil of Al Qaeda’s philosophy, to expose bin Laden and his lieutenants to the light of day before they acquire mythic or martyr status, and to expound the irresponsible misuse of sovereign power by the Taliban will be lost in a trial by special military commissions, sacrificed to a fear that “justice” properly so called will not accomplish the government’s desired results.

The Lockerbie Alternative

The United Nations brokered an agreement between the United States, Britain, and Libya to establish a special court to try the two Libyan intelligence officers accused of placing a bomb on board Pan Am flight 103 which exploded over Lockerbie in Scotland on December 21, 1988, killing 259 passengers and crew. The court, which convicted the senior officer, Abdul Basset Ali Al-Megrahi, on January 31, 2001, reflected territorial jurisdiction (the offense having been committed in Scotland) by being comprised of three Scottish judges, who applied Scottish law and gave audience only to Scottish advocates. Rather than sitting in Scotland, however, the judges presided in a neutral location at Camp Zeist—an unused American airbase in the Netherlands, which had been placed under UK sovereignty for the purpose of the trial. The charge was conspiracy to commit murder rather than to commit a crime against humanity, but the international principle that such crimes require a reasoned verdict was adopted in the decision to remove the jury and allow the judges to determine the facts and interpret relevant laws. An international flavor also came from the fact that the prosecution was a joint operation, the evidence having been collected over 12 years by US and Scottish law-enforcement agencies.