Guantanamo military commission

Military commissions are among procedures planned by the U.S. Bush administration to deal with detainees it links to al-Qaeda. On September 28 and September 29, 2006, the US Senate and US House of Representatives, respectively, passed the Military Commissions Act of 2006, a controversial bill that allows the President to designate certain people with the status of enemy combatants thus making them subject to military commissions, where they have fewer civil rights than in regular trials.

The American Bar Association announced that: "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 Qaida 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."

Supreme Court judgement

On 29 June 2006, the US Supreme Court handed down its decision[1] in the case "Hamdan v. Rumsfeld" Docket 05-194, with a 5-3 decision for Salam Hamdan, effectively declaring that trying Guantanamo Bay detainees under the Guantanamo military commission (known also as Military Tribunal) was illegal under US law and the Geneva Conventions.

Quoting the judgement (Paragraph 4, page 4), "4. The military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ (Uniform Code of Military Justice) and the four Geneva Conventions signed in 1949." Ultimately what the Supreme Court ruled was that President Bush did not have the sole authority to hold tribunals and needed to get authorization to do so from Congress.

With the War Crimes Act in mind this ruling presented the Bush administration with the risk of criminal liability for war crimes. To address these legal problems, among other reasons, the Military Commissions Act was adopted.

Comparison with the American justice system

The United States has two parallel justice systems, with laws, statutes, precedents, rules of evidence, and paths for appeal. Under these justice systems prisoners have certain rights. They have a right to know the evidence against them; they have a right to protect themselves against self-incrimination; they have a right to legal counsel; they have a right to have the witnesses against them cross-examined.

The two parallel justice systems are the Judicial Branch of the US Government, and a slightly streamlined justice system for people under military jurisdiction. People undergoing a military court martial are entitled to the same basic rights as those in the civilian justice system.

The military commissions are not courts martial.

• The accused are not allowed access to all the evidence against them. The presiding officers are authorized to consider secret evidence the accused have no opportunity to refute.
• It may be possible for the commission to consider evidence that was extracted through coercive interrogation techniques before the enactment of the Detainee Treatment Act [2]. However, legally the commission is restricted from considering any evidence extracted by torture, as defined by the Department of Defense.[3]
• The Appointing Officer in overall charge of the commissions is sitting in on them. He is authorized to shut down any commission, without warning, and without explanation.
• 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 only use military lawyers or those civilian attorneys eligible for the Secret security clearance.[4]

Other elements that may have compromised the fairness of the commissions are:

• The lawyers who have been approved report being unable to see their clients for over six months because the Department of Defence was playing games over providing translators. The lawyers had to provide their own translators. They weren't allowed to use DoD translators. The lawyers had to get their translators approved by the DoD. And they reported that the DoD kept telling them that they couldn't clear any of translators they were proposing.
• Detainees lawyers have reported that Military Intelligence had been conducting charades where MI officers represented themselves as the detainee's lawyers.
• Detainees lawyers have reported that the detainee's interrogators and guards had been warning the detainees they couldn't trust their lawyers because they were all Jews.
• Because the accused are charged as [unlawful combatants], former Secretary of Defense Donald Rumsfeld stated that an acquittal on all charges by the commission is no guarantee of a release. [5]

The accused

The USA has charged ten detainees:

Detainee	Charges	Dates	Allegations
David Matthew Hicks	material support for terrorism	captured November 10 2001 charged August 26 2004 sentenced March 30 2007	translated manuals undertook jihad training helped defend Kandahar and Konduz during the Invasion of Afghanistan
Salim Ahmed Hamdan	—	—	Osama bin Laden's driver Served as one of Osama bin Laden's bodyguards
Ali Hamza Ahmed Sulayman al Bahlul	—	—
Ibrahim Ahmed Mahmoud al Qosi	—	—	An Al Qaeda paymaster Ran an Al Qaeda front company Osama bin Laden's driver Served as one of Osama bin Laden's bodyguards
Omar Khadr	murder attempted murder aiding the enemy conspiracy	charged on November 8, 2005 - [6] commission appointed December 1 2005 - [7]	threw a grenade that killed Christopher J. Speer shows how to plant land mines in a video scouted territory occupied by the USA
Sufyian Barhoumi	attempted murder	charged on November 8, 2005	trained al Sharbi and al Qahtani in how to build remote controlled bombs captured together with Abu Zubaydah
Ghassan Abdullah al Sharbi	attempted murder	charged on November 8, 2005	captured together with Abu Zubaydah
Jabran Said bin al Qahtani	attempted murder	charged on November 8, 2005	wrote a training manual on how to build bombs captured together with Abu Zubaydah
Binyam Ahmed Muhammad	attempted murder	charged on November 8, 2005	conspired with "dirty bomber" Jose Padilla
Abdul Zahir	conspiracy aiding the enemy attacking civilians[8]	charged on January 20 2006	threw a grenade that wounded journalists. paymaster for an al Qaeda cell reproduced al Qaeda leaflets captured together with Abu Zubaydah

Several other detainees may be charged.

The commission members

Initially the identity of the commission members were to be kept hidden, and the commission was to consist consist of a Presiding Officer (a lawyer), four other officers, and one alternate.

The structure of the commission was radically revised in late 2004. The impartiality of five of the officers was challenged, and two of the officers were removed. All five officers of the commission have an equal vote, the Presiding Officer performs the additional role of administering the trial, much as a judge would in a civil trial.

Peter Brownback	Colonel (retired)	President of the Commissions for David Hicks, Salim Hamdan The only lawyer on the commission. A long time friend of the appointing officer. Brownback was criticized for not being an active member of a state bar.
Christopher Bogdan	Colonel USAF	Member of the Commissions for David Hicks, Salim Hamdan Only commission member who was not challenged.
R. Thomas Bright	Colonel USMC	Member of the Commissions for David Hicks, Salim Hamdan Challenged because he assembled lists of detainees bound for Guantánamo and executed war plans in Afghanistan.[9] Remains on the commission.
Curt S. Cooper	Lieutenant Colonel US Army	Member of the Commissions for David Hicks, Salim Hamdan Admitted referring to the Guantánamo detainees as "terrorists". Admitted being unfamiliar with the Geneva Conventions. Removed from the commission.
Jack K. Sparks Jr.	Colonel USMC	Member of the Commissions for David Hicks, Salim Hamdan Membership was challenged because he lost a subordinate during the attacks of September 11, 2001. Remains on the commission.
Timothy K. Toomey	Lieutenant Colonel USAF	Member of the Commissions for David Hicks, Salim Hamdan An intelligence officer who was involved in the capture of suspects in Afghanistan. Removed from the commission.
Ralph Kohlmann	Colonel USMC	President of the Commissions for Binyam Ahmed Muhammad and Ghassan Abdullah Al-Sharbi

Legal advisors

Since the officers forming the tribunal were not lawyers they are provided with a team of military lawyers, who they could call of for advice, and who provided an opinion on their decisions. See particularly Moazzam Begg.

Teresa M. Palmer	Commander	Legal Advisor to the Office for the Administrative Review of the Detention of Enemy Combatants
J.M. McGarrah	Rear Admiral	Director, Combatant Status Review Tribunal
James R. Crisfield	Commander	Legal Advisor

The lawyers

John D. Altenburg	General (retired)	Appointing authority Will attend all the commissions Has the authority to shut down any commission, immediately, without warning or explanation.
Thomas Hemingway	Brigadier General	Legal advisor to the Office of Military Commissions
Peter Brownback	Colonel (retired)	Commission President (see above)
Ralph Kohlmann	Colonel USMC	Commission President (see above)
Fred Borch	Colonel	Chief Prosecutor Leaked memos surfaced that claimed he had bragged about corrupting the fairness of the proceedings. Reported to have claimed the Commission officers were chosen because they could be trusted to convict Reported to have claimed that all the evidence of the suspect's innocence would be classified top-secret, so the defense never learned of it. Resigned his commission.
Robert L. Swann	Colonel	Chief Prosecutor following Fred Borch. Requested two of the commission officers be removed because they would be biased in favor of conviction.
Dwight H. Sullivan	Colonel USMC Reserve	Appointed to be chief defense counsel Called up from civilian life for this service Worked for the Maryland office of the American Civil Liberties Union in civilian life.
Muneer Ahmad	civilian	Defending Omar Khadr Professor of law Pro bono service Described great difficulties put in his path by military authorities.[10]
Robert Chester	Colonel	Prosecuting Omar Khadr[11]
John Carr	Captain	Appointed to serve as a Prosecutor Requested transfer because the proceeding seemed unjust. Promoted after transfer
Morris Davis	—	Prosecutor for Omar Khadr
Thomas Fleener	Major Army Reserve	Appointed to defend Ali Hamza Ahmed Sulayman al Bahlul Bahlul has consistently insisted on his right to defend himself.
William C. Kuebler	Lieutenant Commander U.S. Navy	Appointed to defend Ghassan Abdullah Al Sharbi Al Sharbi insisted on his right to defend himself.
John Merriam	Captain	Appointed to defend Omar Khadr
Michael Mori	Major USMC Reserve	Appointed to defend David Hicks
Robert Preston	Major	Appointed to serve as a Prosecutor Requested transfer because the proceeding seemed unjust. Promoted after transfer
Robert D. Rachlin	civilian	Volunteered to defend Ghassan Abdullah al Sharbi
Sharon Shaffer	—	Appointed to defend Ibrahim Ahmed Mahmoud al Qosi
Philip Sundel	—	Appointed to defend Ali Hamza Ahmed Sulayman al Bahlul Bahlul has consistently insisted on his right to defend himself.
Charlie Swift	—	Appointed to serve as Salim Ahmed Hamdan's defense counsel
Carrie Wolf	Captain USAF	Appointed to serve as a Prosecutor Requested transfer because the proceeding seemed unjust. Promoted after transfer

See also

• Administrative Review Board
• Combatant Status Review Tribunal
• Command responsibility
• Camp Delta
• Camp Echo
• Camp Iguana
• Camp X-ray
• court martial
• Geneva Conventions
• Guantánamo Bay
• Hamdan v. Rumsfeld
• Illegal combatant
• Kangaroo Court
• Jus ad bellum
• Jus in bello
• Military tribunal
• Military law
• Show trial
• War on Terror

References

1. ^ U.S. military charges Omar Khadr with murder, CTV, November 8, 2005
2. ^ Khadr faces military trial, Toronto Star, December 2, 2005
3. ^ US brings charges against 10th Guantánamo prisoner, Reuters, January 20 2006
4. ^ Three Guantánamo panelists dismissed over bias allegations, USA Today, October 21 2004
5. ^ At Gitmo, still no day in court: How feds avoid hearings for terror suspects — despite Supreme Court ruling, Newsday, June 15, 2005
6. ^ U.S. prosecutor in Khadr case blasts sympathetic views of Canadian teen, CBC, January 10 2006

External links

• Official Site
• John D. Altenburg, Defense Department Briefing on Military Commission Hearings, Department of Defense, August 17, 2004
• Military Tribunals: Historical Patterns and Lessons, CRS Report for Congress July 9 2004
• James Meek, US fires Guantánamo defence team, The Guardian, December 3 2003
• American Bar Association Task Force on Terrorism and the Law Report and Recommendations on Military Commissions: January 4 2002(PDF)
• At Gitmo, still no day in court: How feds avoid hearings for terror suspects — despite Supreme Court ruling, Newsday, June 15 2005
• Leaked emails claim Guantánamo trials rigged Australian Broadcasting Corporation August 1 2005