Military Commissions Take 2

In a previous posting I covered the rulings of two military judges at Guantanamo Bay who were to hear the cases of two of the men incarcerated at the U.S. enclave. One reader asked for some elaboration on the passage reading: "rights and protections of detainees that, were proceedings held in the “normal” U.S. military court system using the Manual for Courts-Martial and the Uniform Code of Military Justice or in the federal civilian court system, would be afforded them."

With Secretary of Defense Robert Gates revealing that he has been pushing to close GITMO, with former Secretary of State General Colin Powell calling for closing GITMO “this afternoon” not tomorrow, and – according to White House Press Secretary Tony Snow – even President Bush wanting to close GITMO “in a responsible manner,” this seems an opportune time to meet this request.

To really do a thorough study would require consideration of a series of interlocking issues such as:

- the nature of the struggle against al-Qaeda and its affiliates;

- international authorizations or the lack thereof for military actions undertaken by the U.S. and coalition countries;

- unilateral exercise of “extra-territoriality” claimed by the U.S., creation of “new” categories of detainees and other questionable pronouncements by the U.S. president; and

- defining the battlefield and the entities of the U.S. government that operate on that battlefield – which trails off on what the president must tell Congress about clandestine operations, including the program for extraordinary renditions and the observance of international treaties, especially the Geneva Conventions.

Suffice to say that the twin rulings earlier this month, together with the ruling by a panel of the U.S. Court of Appeals for the Fourth Circuit that the Pentagon cannot hold a civilian resident of the United States indefinitely without charges, have increased the pressure to move ahead smartly. But the fact that a scheduled meeting at the White House quickly took on the characteristics of a hot potato within the defense and foreign affairs sector. The latest news has no one ready to handle the issue.

The Guantanamo military commissions originally were established by President Bush in his Military Order #1. These commissions were challenged in Hamdan v. Rumsfeld on the basis that the Pentagon determines who will be the judge, who will be the jury, the offences that are to be prosecuted, and the rules of evidence.

The Uniform Code of Military Justice (USMJ) and the Manual for Courts-Martial are the basic documents for the justice system of the U.S. military. These grew out of the U.S. civilian legal system protecting the rights and due process for all Americans, laws for the conduct of land warfare, the 1907 Hague Conventions and the 1949 Geneva Conventions. Article 36 of the UCMJ gives the president the authority to establish procedures in time of war to be used in cases brought before “courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry.” To the extent possible, the “principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts” will be followed. Moreover, “All rules and regulations made under this article shall be uniform insofar as practicable and shall be reported to Congress.”

The U.S. Supreme Court ruled that while President Bush, in his military order, had determined that applying “the principles of law and the rules of evidence generally recognized in…criminal cases in the U.S. district courts” to trials of enemy combatants was not practicable, he had not made the same determination with regard to rules for courts-martial.” This omission was even more egregious, said the court, when coupled with the presidential rule that the accused could be excluded from the courtroom while the trial went forward, denying the accused the right to confront his accusers.

The court, concluding that the rules and procedures for regularly constituted courts-martial were “practicable” and that Commission Order #1 “deviates in many significant respects from these rules,” held that order violated Article 36 and could not be used to try GITMO detainees.

Similarly, Common Article 3 of the Geneva Conventions calls for the use of “regularly constituted courts” that “afford all the judicial guarantees which are recognized as indispensable by civilized peoples.” The Supreme Court held that the government had not shown any compelling reason why it could not use the “regular” courts-martial system to try terror suspects. (Of passing interest, the Court noted that “properly constituted or “regularly constituted” are not defined in Common Article 3, but other sources of international law and international humanitarian law provide the clear meaning of the phrase.)

Looking back, Bush, by calling the struggle to suppress terrorism a “war,” boxed himself into a corner with regards to the minimum standards for interrogating and trying detainees. Creating the category of “unlawful enemy combatants” was a transparent attempt to end run both the Geneva Conventions and U.S. law.

So far, it hasn't succeeded.