http://www.fcnl.org/issues/item.php?item_id=671&issue_id=119Pentagon regulations governing the President’s special military tribunals for those designated for trial in the “war on terrorism” are fatally flawed because they fail to provide due process protections available under the U.S. military justice system, the U.S. civilian criminal justice system, or international law. Due process protections give a defendant the opportunity to show himself innocent of the charges against him. If he does not have effective independent counsel, if he does not stand before an independent judiciary, and if he cannot challenge the trial’s outcome to an independent body, his capacity to challenge the charge, conviction, or sentence is irredeemably subverted.
Background: On Nov. 13, 2001, President Bush issued a Military Order declaring his right to detain and try non-citizens determined by the President to be members of al Qaeda, to be planning or carrying out terrorism against the U.S. or U.S. interests, or to have harbored people from either of these two categories. Defense Secretary Rumsfeld issued implementing regulations on March 21, 2002, creating a structure for special military tribunals (also called military commissions) and the procedural rules by which they are to operate. (A military tribunal or commission is a committee of judges that presides over a trial. The term is also used to refer to the trial itself.) The administrative head of this tribunal structure is called the “Appointing Authority.” He approves the formal charges and appoints the judges for the tribunals (three to seven judges per trial), including naming the presiding officer of each tribunal panel. Defense Sec. Rumsfeld named Dep. Defense Sec. Paul Wolfowitz as the first “Appointing Authority;” but recently, Maj. Gen. John Altenburg has succeeded Paul Wolfowitz in that role.
<snip>
Due Process denied:
Lack of independence and impartiality: In the military, each decision is affected by “command influence,” the unwavering structure of military accountability and obedience to the chain-of-command. Command influence governs the entire special military tribunal process. Those in the military command structure designate the defendant, bring the charge(s), and name the trial judges and the review panel. The judges, the prosecutor, and the government defense counsel are all military officers. The members of the review panel are appointed by the Pentagon and commissioned as Army generals during their terms on the review panel. The Appointing Authority is a military officer. And ultimately, the President (the military’s Commander-in-Chief) makes the non-appealable “final determination” of guilt or innocence. The jailers and (when the death penalty is imposed) the executioner are all military personnel, as well. Thus, all aspects of the proceedings are controlled and staffed from within the military chain-of-command.
Denial of due process: Procedural protections under the special military tribunals are provisional and can be withdrawn by the judges of the tribunal or at the request of the prosecutor. The defendant may be indefinitely detained prior to charging and trial, without a legal proceeding to determine the need for such detention. Prosecution for an act that is declared a crime after the act has been committed (ex post facto prosecution) is permitted. The defendant may not bring a habeas corpus petition (challenging the legality of his detention). Evidentiary rules (e.g., the restriction against the use of hear-say testimony) are more lenient toward the prosecution than during either civilian or regular military trials. Statements from the defendant gathered in interrogation sessions during his pretrial detention period may be used against him. Evidence can be withheld from the defendant and from the defendant’s private civilian counsel, even though all private counsel must first obtain a security clearance. The trial itself may be held in secret, completely closed to the public and press at the request of the prosecution for “national security considerations,” without published standards or procedural protections. All participants are prohibited from speaking publically about the proceedings unless permitted by the tribunal.
<snip>
No oversight by the public or press: The public and the press can be excluded from a trial at the request of the prosecutor or under order from the judges of a tribunal, citing only “national security,” without procedural safeguards or written criteria. Combined with the gag rule imposed on all civilian and military attorneys involved with these cases, problems or injustices may never come to light.
...more...
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(1000+ posts)
Send PM |
Profile |
Ignore
