Are Military Tribunals Fair?
Posted on August 14, 2008
Originally written for Pajama’s Media.
After years of litigation a verdict was finally reached for Salim Hamdan, Osama Bin Laden’s driver and detainee accused of war crimes. While cleared of conspiracy he was convicted on multiple counts of material support for terrorism. Legal groups like the ACLU and the Center for Constitutional Rights quickly criticized the ruling. Certain media elements were not far behind. Much of the criticism was understandable, and much was distorted through the lens of bias. Most of the criticism ended up being deflated after a surprisingly lenient sentence of five and a half years, including five years and a month already served. This sentence fell short of the thirty years to life the prosecutors wanted. Even one of Salim’s defense attorneys admitted the verdict was fair and just. However, a fair outcome doesn’t necessarily reflect a fair process. So, are the military tribunals for the Guantanamo detainees fair? To answer this question we must critically look at both sides of the argument, the details of the process itself, and understand how we arrived at this point.
When war has been declared the United States has made use of military tribunals to try captured enemies outside the scope of conventional civil and criminal matters, historically providing a trial for combatants acting in violation to the Rules of War. The Geneva Conventions established what most countries have adopted as the international standard regarding such rules.
The perception pushed by some is that combatants held at Guantanamo deserve protection under the provisions provided by the Geneva Convention. Others argued that the essence of the Convention is the distinction between lawful combatants and civilians and that terrorists violate this by being non-uniformed, negating this distinction and endangering innocent civilians. This argument applies that Prisoner of War status and the rights that come with that should not extend to those that violate its rules. The Supreme Court settled this argument in 2006 in favor of extending many of these rights to captured combatants held at Guantanamo. This decision was Hamdan vs. Rumsfeld which extended certain rights to the detainees and placed limits on the authority of the executive branch. This decision was the catalyst for Congress to pass the Military Commissions Act of 2006 authorizing the establishment of military commissions within the parameters set by the Supreme Court.
The 5-4 ruling in Boumediene vs. Bush threw another wrench into the efforts to prosecute prisoners at Guantanamo by determining that habeas corpus rights extend to these prisoners and that the Military Commissions Act unconstitutionally suspended those rights. Defense lawyers used this ruling in an attempt to delay the military trial of Salim Hamdan, but were unsuccessful in their argument that the procedures violated certain constitutional rights. District Judge James Robertson ruled against delaying the trial on the grounds that these arguments could be raised on appeal after the completion of the trial. How this ruling’s precedent will affect future proceedings against Guantanamo detainees is yet to be seen.
Determining whether the military commission process is fair requires looking at several factors. Hamdan’s trial served as a test case for the government prosecutors and the detainee defense lawyers. Behind Hamdan there are around 80 other Guantanamo detainees, including five alleged September 11th plotters, the Pentagon intends to try before the commissions. It is important to observe Hamdan’s case to determine the probability of fairness in future military commissions because of the precedents it has set.
Most of the key criticisms in Hamdan’s case were addressed. The concern that evidence obtained through coercive interrogation would be used was alleviated when the judge excluded statements obtained from Hamdan prior to his arrival at Guantanamo. Concerns remained over allowed statements obtained after his arrival due to defense allegations they were obtained through abusive procedures. However, no convincing evidence was presented to prove these allegations. Defense attorneys were also given adequate opportunity and access to challenge secret evidence. Many other points exist in favor of the fairness in this trial including the fact that Hamdan’s conviction is automatically appealed to a military appellate court. That court can reduce, but cannot increase, his sentence. Hamdan can then appeal to U.S. civilian courts as well. However, many legal concerns remain such as the question of whether his prosecution violated the Constitution’s prohibition of ex post facto laws. Concerns addressed in Hamdan’s case do not guarantee future trials will be addressed similarly, but recognized respect of precedent makes it probable.
In my opinion, Salim Hamdan received a fair trial and a lenient but just sentencing. The system in place for future military trials is still not perfect, but provides more protections and rights for captured enemy combatants than ever provided in history. Certain elements definitely need to be addressed while others are yet to be determined. The legal journey to refine the process has only begun.
» Filed Under 1st Amendment, ACLU, Activist Judges, News, War On Terror, military
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3 Responses to “Are Military Tribunals Fair?”
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After almost 7 years in captivity for most of the Gitmo prisoners (or internees, or whatever), the Hamdan case was supposed to show the US government’s case for the entire Gitmo system.
Instead of the SS in the docks at Nuremburg, though, we got a paid driver.
Why such a weak case for the 1st military tribunal?
And, after he got his sentence, did the US say that they could hold Hamdan indenfitely – even after his sentence was served? What’s the whole point of having military tribunals if the government can ignore the verdict and sentence?
The British fought IRA terrorism for 30 years and in doing so treated the IRA as common criminals. They had proper trials, were afforded their own counsel, and in the end the terrorists served long sentences as the murderers they were. It was all in the open, in public courts of law.
Why can’t the US do the same?
I was expecting the 1st military tribunal to be a showcase. Herman Goering (#3 man in the Third Reich), not Heinrich Hoffman (Hitler’s chaffeur).
My guess – and its just a guess – is that the US is stuck with about 200 Arabs and other Moslems in Gitmo that they just don’t have any idea what to do with. 75% of the “worst of the worst” (The Decider’s own words) held at Gitmo at one time or another have simply been let go, allowed to go home to Saudi Arabia or Yemen or Algeria or wherever. Only one (David Hicks, Australia) was sent to home to be convicted and imprisoned in his own country.
Gitmo is a shambles.
Even John McCain says it should be shut down.
What’s the whole point of having military tribunals if the government can ignore the verdict and sentence?
Becaue the Geneva Conventions and our Constitution apply that anyone we deem to be a danger can be held indefinitely, just like we held people in World War II. We give them a trial to determine their sentence of accused crimes. Some of these trials will end up making the prisoners stay for life, instead of until the end of conflict or when we deem they are no longer a danger.
In the Hamdan case the accused was found guilty and sentenced to six years, which means when allowing for time already served, he should be done with his sentence pretty soon.
If the US government ignores the sentence, and keeps Osama Bin Laden’s driver longer, then why have the military tribunal in the first place?
When you say that anyone “we” deem to be a danger can be held indefinitely, whom is “we”? Civilian courts? Military courts? The White House? Where is the accountability? Where is the transparent rule of law?
Earlier I wrote:
“The British fought IRA terrorism for 30 years and in doing so treated the IRA as common criminals. They had proper trials, were afforded their own counsel, and in the end the terrorists served long sentences as the murderers they were. It was all in the open, in public courts of law.”
“Why can’t the US do the same?”
The 1993 WTC hijackers, the 20th 9/11 hijacker and the failed “shoe bomber” all were captured, accused, tried and convicted in open courts of law and afforded the rights of defendents. They are all serving life sentences and slowly rotting to death in US prisons. And yet, somehow, the American republic didn’t suffer any from NOT having these criminals sent to Gitmo for the ’star chamber’ system of justice preferred by some.