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INDEPTH: GUANTANAMO
Military Tribunals: The Fairness Test
CBC News Online | Updated July 11, 2006
U.S. Secretary of Defense Donald Rumsfeld
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Under U.S. President George W. Bush's Military Order No. 1, issued on Nov. 13, 2001, and later revealed in the media, the president gave himself the power to detain anyone who was not a U.S. citizen anywhere in the world and hold them indefinitely.
Publicly, Bush said, "The world now will begin to see what we meant by a fair system that will enable us to bring people to justice [and] at the same time protect [our] citizenry."
The Bush administration decided that detainees suspected of terrorism or links to terrorism would be tried in military tribunals, rather than American criminal courts. It felt that open court trials would be a barrier to intelligence gathering.
It also declared that detainees were not entitled to protections under the Geneva Conventions, which include treating detainees humanely and giving them trials with judicial guarantees.
It's a stance that the Bush administration would be prompted to budge from five years later.
The White House policy
A number of media reports in the United States have said the decision to deny detainees the protection of the Geneva Conventions and to try them by military tribunal was made in the fall of 2001 by a small group of conservative lawyers in the White House and U.S. Justice Department who didn't consult their counterparts in the Pentagon and State Department.
Those lawyers believed the procedures in regular American criminal courts, which had previously tried people accused of terrorist acts such as the first attack on the World Trade Center and the embassy bombings in Tanzania and Kenya, would be a barrier to intelligence gathering.
Under U.S. rules
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There are two types of military courts or tribunals:
A court martial can try members of the U.S. armed forces under the Uniform Code of Military Justice.
A military commission is a military tribunal that tries anyone, either civilian or from another country's military, for alleged offenses.
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Their plan, developed over the next few months was that those accused of terrorist acts would be tried in military courts.
When U. S. Secretary of Defence Donald Rumsfeld announced the long-expected rules for military tribunals on March 21, 2002, he told reporters that the trials, if they are held, would reflect the "unique circumstances" of the Sept 11, 2001, attacks and what the United States calls the "Global War on Terrorism."
A fact sheet released in March 2002 by the Pentagon named the suspects who could face military trial as:
- Members of al-Qaeda
- People involved in acts of international terrorism against the United States.
- People who knowingly harboured terrorists.
Rumsfeld went on to note that the system of trial by military tribunals (also called military commissions) would both protect classified information and guarantee the safety of trial participants from terrorist reprisals.
"It is balanced, it is fair, it is designed to produce just outcomes," Rumsfeld told reporters.
Early on, others were skeptical. Amnesty International said it "believes that military commissions threaten to severely undermine, rather than reinforce, confidence in the administration of justice and maintenance of the rule of law."
In the years since Rumsfeld's announcement, the fairness of Bush's military tribunals has been criticized by domestic civil-rights advocates and the country's international allies. Detainees and their lawyers have challenged the concept of military tribunals.
In June 2006, some of those challenges were successful. The U.S. Supreme Court ruled that military tribunals arranged by the Bush Administration for detainees at Guantanamo Bay were illegal.
Justices also rejected the government's argument that the Geneva Conventions do not apply to prisoners at Guantanamo Bay. Lawyers representing Salim Ahmad Hamdan, one of 10 detainees scheduled for trial, brought the case forward.
Legal analysts say the implications of the ruling are still being examined by the Bush administration and defence lawyers.
But on July 11, 2006, just two weeks after the Supreme Court ruling, the White House reversed its position. A U.S. Defence department memo said all detainees held in U.S. military custody around the world are entitled to protections under the Geneva Conventions. However, White House press secretary Tony Snow, said the policy described in the memo did not mark a switch in the Bush administration's policy, and insisted that all U.S. detainees have been treated humanely.
Key cases
Among the historic cases decided by the United States Supreme Court that affect military tribunals, three are important:
The first (called Ex Parte Quirin) was the case of Nazi saboteurs who were landed in the United States by submarine and quickly rounded up after two of them defected.
In that case, the Supreme Court upheld the use of military tribunals, ruling that the spies and saboteurs were "unlawful belligerents," subject to military courts, who could be tried without the standard constitutional protections provided to Americans.
At the end of the Second World War, many Allied countries, including the United States, Canada, Great Britain and Australia, used military tribunals to try the "low level" war criminals. While the trials in Europe of Nazi defendants were generally regarded as fair, the trials of alleged Japanese war criminals in the Pacific Theatre remain controversial to this day.
General Yamashita testifies at the military commission
Photo credit: U.S. Army |
The second key case was the trial of Japanese General Tomoyuki Yamashita, charged as a war criminal for permitting atrocities by his troops in the Philippines as the Americans retook the country in 1944. The question facing the tribunal was "command responsibility," whether a commander is responsible for the conduct of all his subordinates if he knew or should have known what was going on. Yamashita was convicted by the tribunal and sentenced to death.
His lawyers then appealed to the United States Supreme Court and lost 6-2, six of the justices upholding the tribunal and two justices vigorously disagreeing with it. Yamashita was hanged.
It was in this case, both in the majority decision and the dissent, that rules of fairness for military tribunals were set down.
Right of appeal
The U.S. Supreme Court ruled that a "lawfully constituted" military tribunal was, as in the previous case of the saboteurs, not subject to review by the judiciary or the Supreme Court.
The new rules set down by Donald Rumsfeld and the U.S. Department of Defence follow this rule. There is no appeal to the judiciary, rather appeals and review of the decision of a tribunal are first sent to a military review panel and then up the ladder to the secretary of defence and the president.
Members of the military commission who tried General Yamashita
Photo credit: U.S. Army |
Make-up of the tribunal
The military tribunal that tried General Yamashita consisted of a panel of generals, none of whom had any legal training and who, according to Yamashita's defence lawyers, often had little understanding of legal procedures.
The new rules make sure this problem does not arise by ensuring that the presiding officer is "a military officer who is a judge advocate of the United States armed forces."
But the use of military officers as judges raises another problem. Traditionally in the Western system of justice, the judges are supposed to be independent. In the military, all officers are part of the chain of command and are subject to the daily orders and the career decisions of their superior officers. (In the Yamashita case the superior officer was the man who convened the military court, General Douglas MacArthur.)
Can members of a military commission be truly independent judges? That is a question still being asked.
Probative evidence
The rules released by Rumsfeld read: "Evidence shall be admitted, if in the opinion of the Presiding Officer…the evidence would have probative value to a reasonable person."
The question of fairness
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If the U.S. does try Osama bin Laden or anyone else by military tribunal, it should note the concluding paragraph of the famous and scathing dissent by Justice Francis Murphy in the Yamashita case.
"At a time like this, when emotions are understandably high, it is difficult to adopt a dispassionate attitude toward a case of this nature. Yet now is precisely the time when that attitude is most essential. While peoples in other lands may not share our beliefs as to due process and the dignity of the individual, we are not free to give effect to our emotions in reckless disregard of the rights of others. We live under the Constitution, which is the embodiment of all the high hopes and aspirations of the new world. We must act accordingly. Indeed, an uncurbed spirit of revenge and retribution, masked in formal legal procedure for the purposes of dealing with an enemy commander, can do more lasting harm than all the atrocities giving rise to that spirit. The fires of nationalism can be further kindled. And the hearts of all mankind can be embittered and filled with hatred, leaving forlorn and impoverished the noble ideal of malice toward none and charity to all."
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The most controversial aspect of military tribunals, both after the Second World War and in the rules set down by Rumsfeld, is the use of "probative evidence" - rules of evidence far looser than in civilian criminal courts.
Probative evidence admitted in the post-Second World War military tribunals included affidavits, hearsay, reports of rumour, newsreels and propaganda films. One of the reasons the military courts after the War permitted such evidence was practical. Witnesses were dead or scattered around the world (many soldiers had gone home and did not want to return for a trial), records had been destroyed.
In some Second World War tribunals, even newspaper clippings were admitted as evidence. The argument was that, at least in the most important cases in Nuremberg and Tokyo, the judges on the tribunal would not be swayed in the way a jury might be. But problems arose when tribunals of military officers with no legal training heard later cases.
There have been constant charges that it was the use of probative evidence that made many of those tribunals "kangaroo courts."
Examples given in news accounts of possible probative evidence include notes, letters and other material found in Afghanistan by U.S. or allied forces after the collapse of the Taliban. The U.S. also wants the option of hearing classified evidence in secret.
In its majority decision in Yamashita, the U.S. Supreme Court simply noted that it had ruled that Yamashita was subject to military law that permitted such evidence.
In his dissent, however, Justice Wiley Rutledge said:
"It is outside our basic scheme … to convict on "official documents, affidavits … documents or translations thereof, diaries, photographs, motion picture films and newspapers or on hearsay, once, twice or thrice removed, more particularly when the documentary evidence or some of it is prepared ex parte [without the defendant present] by the prosecuting authority and includes not only opinion but conclusions of guilt. Nor in such [capital] cases do we deny the rights of confrontation of witnesses and cross-examination."
The third case was called Eisentrager and also took place just after the Second World War. It involved German prisoners captured by the Americans in China, tried for war crimes and then sentenced to prison in Germany. In that case, the German prisoners appealed their detention to the U.S. Supreme Court which ruled what it called "extraterritorial aliens" were not protected by the U.S. Constitution.
Lawyers opposing the detention in recent cases have argued that Eisentrager was tied closely to the facts of that case and doesn't necessarily apply to suspects picked up as alleged terrorists.
In June of 2004, the U.S. Supreme Court narrowed the Eisentrager decision. The decision came in the case of an alleged enemy combatant named Yaser Hamdi who was born in the United States, captured in Afghanistan and then detained in the United States.
The case was argued before the Supreme Court just before the Abu Ghraib scandal of prison abuse in Baghdad became known. The decision was released some weeks after the details of Abu Ghraib were widely covered. There has been media speculation that the scandal did sway the usually conservative court to rule that the prisoners facing military tribunals did have some due process rights under the U.S. Constitution.
Just what the rights of prisoners of are and whether they will be eventually tried by military courts or in civilian courts, is now slowly being worked out case-by-case in the lowest levels of the U.S. federal court systems.
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