Military Commissions: Neither Court Nor Tribunal
President Obama’s decision Friday to revive military tribunals to try suspected terrorists will likely fail to erase the taint of illegitimacy over the courts despite efforts at reform, civilian and military legal experts said.
Obama outlined five rule changes aimed at bolstering defendants’ rights, including strict limits on the use of coerced evidence, tougher restrictions on the use of hearsay evidence and more latitude for defendants to choose their own lawyers.
Still, experts said the tribunals, also known as military commissions, are seen as so flawed that no amount of improvement will be able to dispel impressions that they are rigged to deliver convictions. >>>
Military commissions, which President Barack Obama announced would be retained with some changes, are neither federal courts, nor courts martial.
Created in 2006 by the U.S. Congress to try U.S. war-on-terror detainees held in the Guantanamo Bay prison located on a U.S. naval base in southeastern Cuba, they have been heavily criticized for flouting fundamental principles of U.S. law.
The commissions have been mostly faulted for allowing evidence that would not be permitted in civilian courts or even normal US military courts martial.
Currently about a dozen trials have been suspended awaiting a decision on the future of the commissions by the Obama administration.
Most cases arise out of charges linked to the September 11, 2001 attacks or the 2000 attack on the USS Cole off the coast of Yemen.
Other cases involve adolescents detained in Afghanistan in 2001 and charged with killing U.S. soldiers in a grenade attack.
Since their creation, the commissions have been sharply criticized, partly for admitting as evidence statements made by prisoners under coercion or torture, something that no other regular court would allow.
Military commissions also allowed second-hand evidence, that is to say the presentation of witness statements without the presence of the witness in the courtroom to be challenged on his testimony.
Normal U.S. courts would reject such evidence as “hearsay.”
However, in a statement on Friday, Obama said that several changes will be made to the running of the commissions.
“First, statements that have been obtained from detainees using cruel, inhuman and degrading interrogation methods will no longer be admitted as evidence at trial,” the president said.
“Second, the use of hearsay will be limited, so that the burden will no longer be on the party who objects to hearsay to disprove its reliability.”
Defendants would also be given greater choice in choosing their defense team, and protection would be provided for those who refuse to testify.
“Fifth, military commission judges may establish the jurisdiction of their own courts,” Obama added in his statement.
But the resumption of the commissions has already provoked anger from human rights groups and lawyers.
“Military commissions are a very different world,” said Lieutenant Colonel Suzanne Lachelier, a military lawyer assigned to defend Ramzi Binalshibh, accused of helping organize the September 11 attacks.
And she regretted that Obama’s modifications would allow a kind of “fourth system” of justice to evolve.
She said she was also very worried that the system at Guantanamo allows the prosecution to claim that their evidence is classified, and therefore force the judge to hold a hearing closed to any outsiders.
The use of such classified documents is an integral part of the procedure, said Lachelier. “The government can decide to use as evidence one of its documents without the first informing the defense and letting it see what is in the documents,” she said.