Guantanamo military commission

History

In response to the unprecedented attacks of September 11, on November 13, 2001, the President announced that certain non-citizens would be subject to detention and trial by military authorities. The 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.

4. The military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949.

Comparisons to U.S. and international systems

United States justice systems

• 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.
• 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.
• It may be possible for the commission to consider evidence that was extracted through coercive interrogation techniques before passage of the Detainee Treatment Act. But, legally, the commission is restricted from considering any evidence extracted by torture, as defined by the Department of Defense in 2006.
• The proceedings may be closed at the discretion of the Presiding Officer, so that secret information may be discussed by the commission.
• 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.
• Because the accused are charged as unlawful combatants, 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

• A majority of the three judges present, as triers of fact, may reach a decision, which must include a full and reasoned statement. 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.
• Trials are supposed to be public, but proceedings are often closed, and such exceptions to a public trial have not been enumerated in detail. 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.
• In camera proceedings are allowed for protection of witnesses or defendants as well as for confidential or sensitive evidence. 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.
• 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,similar to the military commissions. 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."

  Commission cases

Boycott of Military Commissions

The commission members

Legal advisors

The lawyers

Security precautions

• 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

Costs