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Stop The ACLU Blogburst: Are Military Tribunals Fair?

August 15, 2008

From Stop The ACLU

Are Military Tribunals Fair?

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.

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  1. August 16, 2008 7:44 am

    Hamdan got a fair trial… the ACLU is just silly about this. The Military Commissions trials, when compared to other international tribunals, significantly more protective of the accused. However, Military Commissions are not the same as US criminal trials, and thus, the ACLU is essentially arguing that captured enemy combatants should receive full federal criminal process – an outcome that is not prescribed in the law.

    Hamdan’s case wasn’t the watershed case in my view. The true test of the proceedings will be when the HVD’s come to trial. Those cases are incredibly complicated, evidenciary challenges will be significant, and the outcome of the trials are high-stakes. If the process works under the strain of that type of trial – then I believe they can handle anything… if the perception is that the Commissions didn’t work on the major guys (KSM, Hambali, etc.) then it will be a failure.

    I would note, however, that in Hamdan’s case, he was convicted on what I would call the “easy” charges – the weapons charge. It was much hard to convict him (and ultimately he was acquitted) on the conspiracy to commit murder, terrorism, etc., charges.

    With the HVD’s those cases are going to be all about conspiracy to commit murder, terrorism, trafficking in weapons, etc., so securing convictions – at least based on how Hamdan went – suggests it’s going to be much much more difficult (as it should be in a fair process).

    Bryan’s last blog post..Why “Georgia” matters…

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