Myths and Realities on Fairness of Military Commission Trials

Myths and Realities on Fairness of Military Commission Trials

When President Bush's order for military commissions was released on November 13, 2001, there was an outcry from liberals and conservatives alike that the plan would set up unfair secret trials worthy of dictatorial nations, not the United States. Since then, the Administration has attempted to reassure the public and the world community that many of the draconian provisions would be corrected in a later Pentagon order setting forth procedures for trials. In fact, the plan for military commissions is as unfair as ever.

Myth: Although President Bush's original plan had problems, a new Pentagon order sets out procedures that provide for fair and impartial tribunals.

"The world now will begin to see what we meant by a fair system that will enable us to bring people to justice [but] at the same time protect citizenry."
--President Bush, March 20, 2002.

"Let there be no doubt. Commissions will conduct trials that are fair and impartial."
--Secretary of Defense Donald Rumsfeld, March 22, 2002.

Reality: Under the Pentagon's order, military commissions will try non-citizens without a judge or jury. Instead, every member of a "military commission" will be a military officer hand picked by the President, the Secretary of Defense or a designee, called the Appointing Authority. That's a serious problem, because these officials appear to have decided already that the prisoners are guilty. President Bush has said they are "killers," while Deputy Defense Secretary Paul Wolfowitz has said those who will be tried are "guilty of serious terrorist crimes against the United States." There is no way to challenge the fairness or impartiality of commissioners, unlike in the normal court-martial system. The Appointing Authority also chooses the members of appellate review panels, and won't be bound by their findings. The commissions won't be able to operate independently; instead, prosecutors can appeal rulings to the Appointing Authority. The Appointing Authority will pick the Chief Prosecutor and the Chief Defense Counsel. No appeal outside the military system is allowed.

Myth: While some were concerned the original plan denied court review, the new plan has checks and balances and preserves court review.

"The order preserves judicial review in civilian courts."
--White House Counsel Alberto Gonzalez, November 30, 2001.

Reality: Under the President's military order, no court, federal, state, foreign, or international, is allowed to review the military commission's proceedings. The Pentagon's order does not change this in any way. While similar language was interpreted in Ex Parte Quirin to allow for a very limited challenge to a military commission convened by President Roosevelt in 1942, that decision applied to a commission in the United States. The court did not review the fairness of the tribunal or the innocence or guilt of the accused. Historians believe some of the defendants may have been innocent. The government will rely its court-stripping language as interpreted in that case to press for the most limited scope of review possible. The government has already argued that no U.S. court has jurisdiction to hear a challenge to detentions in Guantanamo Bay, Cuba, even though prisoners are being held on a U.S. military base.

Myth: Defendants appearing before military tribunals will have the right to an effective lawyer, just like in the regular court system.

"Anybody that is tried will have vigorous, competent representation, and we expect that they will seek every avenue they can to protect the interests of their client."
--Defense Department General Counsel William Haynes, March 22, 2002

Reality: Although the Pentagon will give the accused a lawyer if he can't afford one, it will be a military lawyer appointed by the Chief Defense Counsel, who is appointed by the President, Secretary of Defense or his designee, called the Appointing Authority. A civilian lawyer is allowed at the accused's own expense, but only if the government approves. In a regular court, the government does not have veto power over who can be a defense lawyer. The civilian lawyer may not be allowed to see some evidence at all, even if it's not classified, and even the military lawyer may not be allowed to see all the classified evidence, just a summary.

Myth: Trials before military commissions will be open, and defendants will have the right to confront the evidence against them. Procedures to protect classified information won't be very different from procedures in regular courts.

"Military commission trials are not secret. The president's order authorizes the secretary of defense to close proceedings to protect classified information."
--White House Counsel Alberto Gonzalez, November 30, 2001.

Reality: The Pentagon order allows broad discretion to close proceedings and to withhold evidence from the defense, even when evidence is not classified. The government may order closure and withholding of evidence to protect information that it says should have been classified (but wasn't) and information that is unclassified but whose disclosure the government says could threaten witnesses or participants. The government can even close trials and withhold evidence that is not classified if the government asserts general "national security" reasons. Since the Pentagon order allows "all or part" of a trial to be closed, trials can indeed be conducted in secret. The accused and his civilian lawyer can be excluded from closed hearings and may not be given the evidence discussed at those hearings at all. Even the military lawyer might not be able to see all the classified evidence, but instead could have to rely on a redacted summary of evidence. By contrast, the Classified Information Procedures Act and procedures in military courts-martial requires disclosure of any evidence used against a defendant to prove guilt, while safeguarding against unnecessary disclosure of irrelevant classified material.

Myth:These trials are only for the worst of the worst, Al Qaeda members who will face charges of war crimes for their participation in the horrendous attacks of September 11, 2001.

"But the only people that would be subjected to these commissions are . . . guilty of serious terrorist crimes against the United States."
--Deputy Defense Secretary Paul Wolfowitz on March 31, 2002

"[The President] intends to use this tool, if he does do it . . . to try war crimes
--Defense Department General Counsel William Haynes, Dec. 12, 2001

"[T]he correct construction of the order would indicate that only individuals who had committed war crimes would be subject to the jurisdiction of the [military] commission."
--Attorney General John Ashcroft, December 6, 2001

Reality: The President's order applies not only to war crimes prosecutions but also for any non-citizen against whom the government asserts it has a "reason to believe" was involved in "international terrorism." "International terrorism" is not defined. The defendant does not have to be a top leader or even member of Al Qaeda. The order is not limited to war crimes under federal law. Rather, the order specifically permits trials of "violations of the law of war or other offenses triable by military commission." (emphasis added). What those other offenses might be is not specified. The President's order cites the Congress's authorization of military force in response to the September 11 attacks as authority (which said nothing about using military tribunals), but it is not limited to trials involving the September 11 attacks.

Myth:While the President's original plan did not guarantee the presumption of innocence or proof beyond a reasonable doubt, leading to concerns about sham justice, under the Pentagon order defendants are presumed innocent, and the government must prove its case beyond a reasonable doubt in order to win.

"The suggestion that these commissions will afford only sham justice like that dispensed in dictatorial nations is an insult to our military justice system."
--White House Counsel Alberto Gonzalez, November 30, 2001.

"If we had a trial right this minute, it is conceivable that somebody could be tried and acquitted of that charge but may not necessarily automatically be released."
-- Defense Department General Counsel William Haynes, March 21, 2002.

Reality: It comes as no surprise that the normal military justice system does not allow people who have been acquitted to continue to be imprisoned. But under the theory that prisoners are "detainees" of the "war on terrorism," the Administration has asserted the sole, unreviewable power to imprison defendants indefinitely, even if they are acquitted of terrorism charges. Indefinite detention without charge is normally forbidden by both the U.S. Constitution and by international law. Indeed, in June 2001, the Supreme Court ruled in Zadvydas v. Davis that indefinite detention even of non-citizens whom the government labeled as dangerous is not within the government's power once they have served their sentences. While the Supreme Court said that extraordinary circumstances may justify detention without criminal charges, it has also held that such a power requires "strong procedural protections" and hearings that make the government show that a person is dangerous. The Pentagon's order contain no such protections; rather, the Pentagon says it may hold prisoners for as long as it likes.

Myth: The order applies only to non-US citizens who are captured abroad by military forces, such as Al Qaeda forces hiding in caves in Afghanistan, and won't be used against people arrested by the police or against US citizens.

"[F]ears that military commissions will be used to try green-card holders living in the United States for ordinary civilian crimes are totally unfounded."
--Defense Department General Counsel William Hayes, Dec. 3, 2001

"I said that U.S. citizens will not go into military tribunals. And so we'll make the determination whether or not [John Walker Lindh] stays within the military system or comes through the civil justice system, the same system in America."
--President Bush, Dec. 18, 2001

Reality: The President's order applies to any "non-citizen," and is not limited to the battlefield, meaning that long term, lawful permanent residents in the United States certainly could face trial before military commissions. Nor is the Pentagon's order limited to war crimes, but instead covers "violations of the law of war or other offenses triable by military commission." What those "other offenses" might be is not specified. Finally, while the order does not apply to American citizens, if the Administration is correct that military commissions can be used to try terrorism cases, there is nothing to stop the Administration from extending the order to American citizens. The Supreme Court has said that, if military commissions can be used, an American citizen has no more right to trial in a civilian court than a non-citizen.

-Timothy H. Edgar ACLU Legislative Counsel

Last Updated On or Before April 4, 2002.