Guantanamo military commission

Court room where initial Guantanamo military commissions convened.

The Guantanamo military commissions are military tribunals authorized by presidential order, then by the Military Commissions Act of 2006, and currently by the Military Commissions Act of 2009 for prosecuting detainees held in the United States Guantanamo Bay detainment camps.

History

The American Bar Association reported in January 2002:

"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 [executive] 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]

The United States Department of Defense (DOD) organized military tribunals to judge charges against enemy combatant detainees being held at Guantanamo Bay detention camp. In the early years, the camp authorities did not allow foreign detainees access to attorneys, or materials supporting their charges, and the executive branch declared them outside the reach of due process under habeas corpus. In Rasul v. Bush (2004), the US Supreme Court ruled that they did have rights to habeas corpus and had to be provided access to legal counsel and an opportunity to challenge their detention before an impartial tribunal.

On June 29, 2006, the Supreme Court had ruled in Hamdan v. Rumsfeld Docket 05-194, with a 5-3 decision for the detainee Salim Ahmed Hamdan. It effectively declared that trying Guantanamo Bay detainees under the existing Guantanamo military commission (known also as Military Tribunal) was illegal under US law, including the Geneva Conventions.^[2]

According to 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."

and operate tribunals and is required to get authorization to do so from the United States Congress, as part of the separation of powers in the US government.

Major Elizabeth Kubala, Spokesperson for the Office of Military Commissions, gives a press briefing.

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, the president requested and Congress passed the Military Commissions Act.^[3]

On September 28 and September 29, 2006, the US Senate and US House of Representatives, respectively, passed the Military Commissions Act of 2006, and President Bush signed it on October 17, 2006. The bill was controversial for continuing to authorize the President to designate certain people as "unlawful enemy combatants," thus making them subject to military commissions, and depriving them of habeas corpus.

In Boumediene v. Bush (2008), the US Supreme Court ruled that foreign detainees held by the United States, including those at Guantanamo Bay detention camp, did have the right of habeas corpus under the US constitution, as the US had sole authority at the Guantanamo Bay base. It held that the 2006 Military Commissions Act was an unconstitutional suspension of that right.

Comparisons to U.S. and international systems

United States justice systems

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 counsel; and they have a right to have the witnesses against them cross-examined.

The two parallel justice systems are the Judicial Branch of the U.S. Government, and a slightly streamlined justice system named the Uniform Code of Military Justice (UCMJ) 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 under the 2006 MCA 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 which the accused have no opportunity to see or refute.^[5]
• It may be possible for the commission to consider evidence that was extracted through coercive interrogation techniques before passage of the Detainee Treatment Act.^[6] But, legally, the commission is restricted from considering any evidence extracted by torture, as defined by the Department of Defense in 2006.^[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 use only military lawyers or those civilian attorneys eligible for the Secret security clearance.^[9]
• Because the accused are charged as unlawful combatants (a certain category of people who are not classified as prisoners of war under the Geneva Conventions), then Secretary of Defense Donald Rumsfeld said in March 2002 that an acquittal on all charges by the commission is no guarantee of a release.

International

Note that international human rights law prohibits trying civilians in military tribunals. Adding to the fact that this "comparison" is misleading due to the fact that the United States has never ratified the International Criminal Court statute, and in fact it has withdrawn its original signature of accession when it feared repercussions of the Iraq War.^[10]

Much like the military commissions, the International Criminal Court (ICC) trial procedures call for:

• A majority of the three judges present, as triers of fact, may reach a decision, which must include a full and reasoned statement.^[11] However, and unlike the U.S. Military Commission, those are judges and not mere military officers. Additionally, the ICC statute requires the judges to be of a high level of competence in criminal law and the necessary relevant experience; or have established competence in relevant areas of international law such as international humanitarian law and the law of human rights and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court.^[12]
• Trials are supposed to be public, but proceedings are often closed, and such exceptions to a public trial have not been enumerated in detail.^[13] Nonetheless, the ICC statute explicitly states that the principle is a public trial, and exceptions could be entertained by the judges if they provide sufficient grounding.^[12]
• In camera proceedings are allowed for protection of witnesses or defendants as well as for confidential or sensitive evidence.^[14] However, the statute states that this is an exception to the principle of public hearings which the court applies in particular to victims of sexual violence and children who are victims or witnesses.^[12]
• Hearsay and other indirect evidence is not explicitly prohibited in the statute, which adds flexibility to the proceedings due to the different legal traditions of the judges or of the applied law. But it has been argued the court is guided by hearsay exceptions which are prominent in common law systems,^[15]similar to the military commissions.^[16] Nonetheless, established rules of international law provides that admissibility of such evidence by guided by "hearsay exceptions generally recognized by some national legal systems, as well as the truthfulness, voluntariness and trustworthiness of the evidence." ^[11]

Commission cases

Name	Charges	Verdict	Dates
David Hicks	Providing material support for terrorism[17]	Found guilty, sentenced to seven years in prison (only served nine months of penalty, mostly in Australia, under terms of plea agreement)	Charged: February 3, 2007[17] Sentenced: March 30, 2007 Arrived in Australia: May 20, 2007 Released: December 29, 2007
Salim Hamdan	Conspiracy; providing material support for terrorism	Acquitted on conspiracy charge; found guilty for providing material support and sentenced to five and a half years (66 months) in prison (credited for 61 months in detention); conviction vacated by Appeals Court in October 2012	Captured: November 24, 2001 Charged: May 10, 2007 Sentenced: August 7, 2008 Transferred to Yemen: November 26, 2008[18] Released: December 27, 2008 Acquitted: October 16, 2012[19]
Ali Hamza al-Bahlul	conspiracy, solicitation to commit murder, and providing material support for terrorism	Sentenced to life imprisonment without parole in 2008; conviction vacated by Court of Appeals in 2013	Charged: February 9, 2008 Sentenced: November 4, 2008[20] Acquitted: January 25, 2013[21]
Ibrahim al Qosi			Captured: December 2001
Omar Khadr	Murder in violation of the law of war; attempted murder in violation of the law of war; conspiracy; providing material support for terrorism; spying		Charged: February 2, 2007
Sufyian Barhoumi
Ghassan al-Shirbi
Jabran al-Qahtani
Benyam Mohammed		All charges dropped
Abdul Zahir
Mohamed Jawad	Three counts of attempted murder; three counts of committing serious bodily harm	All charges withdrawn and dismissed.	Charged: October 11, 2007 Won his habeas corpus petition: July 30, 2009. Charges withdrawn and dismissed: 31 July 2009.
Noor Uthman Muhammed	One count of providing material support for terrorism; conspiracy	Plea of guilty to all counts

Boycott of Military Commissions

The sign waved by Ali al-Bahlul declaring a boycott at his 2006 hearing.

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.^[22]

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.

Peter Brownback	Colonel (retired)	President of the Commissions for David Hicks, Salim Hamdan|-	Christopher Bogdan	Colonel USA	Member of the Commissions for David Hicks, Salim Hamdan
R. Thomas Bright	Colonel USMC	Member of the Commissions for David Hicks, Salim Hamdan
Curt S. Cooper	Lieutenant Colonel U.S. Army	Member of the Commissions for David Hicks, Salim Hamdan Removed from the commission.
Jack K. Sparks Jr.	Colonel USMC	Member of the Commissions for David Hicks, Salim Hamdan
Timothy K. Toomey	Lieutenant Colonel USAF	Member of the Commissions for David Hicks, Salim Hamdan Removed from the commission.|-	Ralph Kohlmann	Colonel USMC	President of the Commissions for Binyam Ahmed Muhammad and Ghassan Abdullah Al-Sharbi

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

John D. Altenburg	Major General (retired)	Appointing authority Will attend all the commissions Has the authority to shut down any commission, immediately, without warning or explanation.
Thomas Hemingway	Brigadier General	Legal advisor to the Office of Military Commissions
Peter Brownback	Colonel (retired)	Commission President (see above)
Ralph Kohlmann	Colonel USMC	Commission President (see above)
Fred Borch	Colonel	Chief Prosecutor Leaked memos surfaced that claimed he had bragged about corrupting the fairness of the proceedings. Reported to have claimed the Commission officers were chosen because they could be trusted to convict Reported to have claimed that all the evidence of the suspect's innocence would be classified top-secret, so the defense never learned of it. Resigned his commission.
Robert L. Swann	Colonel	Chief Prosecutor following Fred Borch. Requested two of the commission officers be removed because they would be biased in favor of conviction.
Dwight H. Sullivan	Colonel USMC Reserve	Appointed to be Chief Defense Counsel (United States) Called up from civilian life for this service Worked for the Maryland office of the American Civil Liberties Union in civilian life.
Muneer Ahmad	civilian	Defending Omar Khadr Professor of law Pro bono service Described great difficulties put in his path by military authorities.[23]
Robert Chester	Colonel	Prosecuting Omar Khadr[24]
John Carr	Captain	Appointed to serve as a Prosecutor Requested transfer because the proceeding seemed unjust. Promoted after transfer
Morris Davis	Colonel U.S. Air Force	Prosecutor for Omar Khadr
Thomas Fleener	Major Army Reserve	Appointed to defend Ali Hamza Ahmed Sulayman al Bahlul Bahlul has consistently insisted on his right to defend himself.
William C. Kuebler	Lieutenant Commander U.S. Navy	Appointed to defend Ghassan Abdullah Al Sharbi Al Sharbi insisted on his right to defend himself. Represented Omar Khadr from 2007 to 2009.
John Merriam	Captain U.S. Army	Appointed to defend Omar Khadr
Michael Mori	Major USMC Reserve	Appointed to defend David Matthew Hicks
Robert Preston	Major	Appointed to serve as a Prosecutor Requested transfer because the proceeding seemed unjust. Promoted after transfer
Robert D. Rachlin	civilian	Volunteered to defend Ghassan Abdullah al Sharbi
Sharon Shaffer	—	Appointed to defend Ibrahim Ahmed Mahmoud al Qosi
Philip Sundel	—	Appointed to defend Ali Hamza Ahmed Sulayman al Bahlul Bahlul has consistently insisted on his right to defend himself.
Charles Swift	Lieutenant Commander	Appointed to serve as Salim Ahmed Hamdan's defense counsel
Carrie Wolf	Captain USAF	Appointed to serve as a Prosecutor Requested transfer because the proceeding seemed unjust. Promoted after transfer

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:^[25]

• 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.^[26]

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.^[27] 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]

On March 7, 2011, President Obama authorized further trials under military commissions for Guantanamo detainees.^[28] On the same day, he signed Executive Order 13567 authorizing the creation of Periodic Review Boards (PRB) to determine the fate of prisoners who will not be prosecuted in the commissions or in Federal Court.^[28][29] The Washington Post described this latter channel as "a formal system of indefinite detention."^[29] At the time, 48 of the 172 prisoners held at Guantanamo were expected to be overseen by the PRB, due to "evidentiary problems" with putting them on trial.^[29] The first such review was convened in July 2013.

Costs

According to Hindustan Times the electronic equipment that was installed in courtroom number 2 cost $4 million USD.^[30]

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

1. "American Bar Association Task Force on Terrorism and the law report and recommendations on Military Commissions" (PDF). American Bar Association. January 4, 2002. Retrieved 2007-12-16.
2. "Syllabus: Hamdan v. Rumsfeld, Secretary of Defense" (PDF). Supreme Court of the United States. October 2005. Retrieved 2007-12-17.
3. Glaberson, William (May 2, 2009). "U.S. May Revive Guantánamo Military Courts" (webpage). The New York Times. Retrieved 2009-05-02.
4. , Calgary Sun
5. Sean Flynn, "The Defense Will Not Rest", GQ Magazine, August 2007, p. 1
6. "FAQs about the Military Commissions Act". The Center for Victims of Torture. Retrieved 2007-12-17.
7. "Military Commission Instruction No. 10" (PDF). United States Department of Defense. March 24, 2006. Retrieved 2007-12-16.
8. rcfp.org Feb 28 2004
9. "Trial Guide for Military Commissions" (PDF). United States Department of Defense. August 17, 2004. Retrieved 2007-12-17.
10. US Dept. of State: News Release
11. Schabas, William A. (2011). An Introduction to the International Criminal Court. Cambridge University Press. p. 312. ISBN 978-0-521-15195-5.
12. Article 67.1 and 68.2 Rome Statute of the International Criminal Court
13. Schabas 2011, pp. 303–304.
14. Schabas 2011, p. 304.
15. Schabas 2011, p. 312.
16. Shawcross, William (2012). Justice and the Enemy: From the Nuremberg Trials to Khaled Sheikh Mohammed. PublicAffairs. p. 120. ISBN 9781586489755.
17. "http://www.foreignminister.gov.au/releases/2007/joint_ruddock_hicks.html". Minister for Foreign Affairs (Australia). 2007-02-03. Retrieved 2008-08-11. External link in |title= (help)
18. "Bin Laden driver arrives in Yemen". Al-Jazeera. November 26, 2008. Retrieved October 5, 2010.
19. Cushman, Jr., John H. (2012-10-16). "Appeals Court Overturns Terrorism Conviction of Bin Laden's Driver". The New York Times. Retrieved 2013-01-01.
20. Percival, Jenny (November 4, 2008). "Guantánamo jury jails Bin Laden media chief for life". The Guardian (London). Retrieved February 14, 2010.
21. "Civilian court rulings cast shadow over Sept. 11 at Guantanamo as hearings resume". The Washington Post. Associated Press. 2013-01-27. Retrieved 2013-01-29.
22. Colson, Deborah. Human Rights First, Another Boycott at Guantánamo, Another Test for the Military Commission System, April 30, 2008
23. "At Gitmo, still no day in court: How feds avoid hearings for terror suspects — despite Supreme Court ruling". Newsday. June 15, 2005. Archived from the original on 2007-10-01. Retrieved 2007-12-17.
24. "U.S. prosecutor in Khadr case blasts sympathetic views of Canadian teen". CBC. January 10, 2006. Retrieved 2007-12-16.
25. Michelle Shephard (January 2, 2008). "Guantanamo hearings try patience: Underwire bra, extra pen among items unpopular with military overseers at terrorist suspects' trials". Toronto Star. Retrieved 2008-01-04.
26. "Closure Of Guantanamo Detention Facilities". Whitehouse.gov. 2009-01-22. Retrieved 2009-01-27.
27. "Judge rejects Obama bid to stall trial". NZ Herald - AP. 2009-01-29. Retrieved 2009-02-07.
28. Shane, Scott; Landler, Mark (2011-03-07). "Obama Says Guantánamo Trials Can Resume". The New York Times. ISSN 0362-4331. Retrieved 2015-11-09.
29. Finn, Peter; Kornblut, Anne E. (2011-03-08). "Obama creates indefinite detention system for prisoners at Guantanamo Bay". The Washington Post. ISSN 0190-8286. Retrieved 2015-11-09.
30. "US hi-tech terror court". Hindustan Times. 2010-07-01. Archived from the original on 2010-07-02. The electronic equipment in “Courtroom No 2” is worth four million dollars, according to the US military here who put the total cost of the “multidefendant” court at 12 million dollars.

External links

• Military Commissions official website
• "Defense Department Picks Officials for Military Tribunal Posts: Appointing authority, legal advisor, review panel members named". United States Department of Defense. December 30, 2003. 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 (November 2003). "Military Commissions: Trying American Justice" (PDF). Army Lawyer. Archived from the original (PDF) on 2009-08-01. Retrieved 2009-08-01.
• Frederic L. Borch III (November 2003). "Why Military Commissions Are the Proper Forum and Why Terrorists Will Have "Full and Fair" Trials: A Rebuttal to Military Commissions: Trying American Justice" (PDF). Army Lawyer. Archived from the original (PDF) on 2009-08-01. Retrieved 2009-08-01.
• Kevin J. Barry (November 2003). "Editorial Comment: A Response to Why Military Commissions Are the Proper Forum and Why Terrorists Will Have "Full and Fair" Trials" (PDF). Army Lawyer. Archived from the original (PDF) on 2009-08-01. Retrieved 2009-08-01.
• Mix and Match at the Guantanamo Military Commissions