In the ongoing war against terror, the Bush Administration advocates that US civic ideals should not frustrate an effective defense. 48 To overcome the limitations of US criminal law, for example, and in keeping with the detainees’ status as unlawful combatants, the Administration has established Military Commissions49 to try designated detainees. 50 Military Commissions are a type of US military tribunal last used in World War II for the trial of spies, saboteurs, and war criminals.
These commissions are applicable only to non-US citizens and are designed to protect the individual rights of the accused while also safeguarding classified and sensitive information used as evidence in the proceedings. 51 The Administration outlines that the commissions are recognized by the Geneva Conventions and have been used by many countries in the past. 52 Egypt is among the countries that have used military commissions, but when Egypt did use this form of tribunal in 2000 it was
openly rebuked in the US State Department’s yearly report on human rights abuses. The State Department report, which was presented to Congress, averred that this type of military court deprived hundreds of civilian defendants of their constitutional rights. 53 The Administration’s “forward-leaning” system of justice for detainees charged with war crimes was crafted by a small group of young lawyers who were settled into important posts in September 2001 at the White House, the Justice Department, and other agencies.
The work was conducted under the direction of Vice President Cheney and coordinated by the White House counsel at that time, Alberto Gonzales, who has since been elevated to Attorney General. The work commenced little more than a week after 9/11. 54 The idea of using Military Commissions had been investigated thoroughly a decade before when options were being considered to try suspects in the bombing of Pan Am Flight 103 over Lockerbie, Scotland. 55 The interagency group investigated four options: Military Commissions, criminal trials, military courts-martial, and tribunals with both civilian and military members, like the Nuremberg trials.
By October 2001, the White House lawyers had grown impatient with the “dithering” of the interagency group and took over the work themselves. It has been reported that at this stage all other options were abandoned and planning for Military Commissions moved forward more quickly, but with whole agencies, including the Defense Department, being left out of the discussions completely. 56 The legal basis for the Administration’s approach was laid out on 6 November 2001 in a then-confidential memorandum sent to Mr. Gonzales by the Attorney General’s office.
Attorney General John Ashcroft subsequently refused congressional requests to provide a copy of the document, but its contents were leaked and reported by The New York Times. The memorandum said that the President, as Commander in Chief, has “inherent authority” to establish Military Commissions without congressional authorization and that the Administration could apply international law selectively. In particular, the memorandum outlined the legal precedent under which due process rights do not apply to Military Commissions.
The Administration moved quickly after receiving the Attorney General’s advice, releasing the Presidential Military Order on “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism” a week later, on 13 November 2001. Rear Admiral Don Guter, who was the Navy Judge Advocate General at the time, has commented that many of the Pentagon’s experts on military justice were kept in the dark until the day before the order was issued, and when it was issued the order included none of their hastily prepared amendments.
It was also reported that senior staff from the National Security Council and the State Department were also excluded from the final discussions on the order, with the National Security Adviser and the Secretary of State finding out the details of the order only after it was issued. 59 In World War II, when the US last used Military Commissions, the tribunals were fashioned generally on the prevailing standard of military justice. 60 Following 9/11, however, the Administration saw no reason why it could not depart materially from current military justice standards and write new law for the commissions.
Those involved believed a paradigm shift was needed to deal with terrorism. The presidential Military Order outlined the concept for the revised approach, which enabled a lower standard of proof, expanded secrecy provisions, permitted a more liberal application of the death penalty, and denied judicial review of convictions. 61 The order announced that the exact rules were to be established later by Secretary Rumsfeld. 62 Criticism of the order was immediate, but not all the criticism came from outside the Administration.
It is widely reported that the respective judge advocate generals within the Pentagon supported the use of commissions, but argued strongly that the system would not be fair without amendment. 63 In the end, when Secretary Rumsfeld published the rules for the commissions, it became obvious that he had taken their counsel into consideration and had compromised. He granted defendants a presumption of innocence and set “beyond a reasonable doubt” as the standard for proving guilt, but did not allow judicial review of convictions by civilian courts.
On 3 July 2003, the Administration designated six detainees for the first commissions. 65 Two of the six were British. News of the men’s prosecution became public in the United Kingdom just as British Prime Minister Tony Blair was beginning a major public relations campaign to overcome his unpopular support for the Iraq War. Under pressure from the British Parliament, Blair declared that any tribunals involving British citizens would follow “proper international law. ”66 Blair was under increasing pressure from his Parliament to secure custody of a total of nine British detainees at Guantanamo.
A series of negotiations involving the British Attorney General, Peter Goldsmith, and officials from the Bush Administration were initiated quickly in order to agree on an acceptable process for the trial of the two British detainees. Lord Goldsmith would not budge from a basic demand that civilian courts review verdicts from the commissions. 67 The Administration argued that such a change would render the commissions unworkable. During a state visit to the UK in late November 2003, President Bush agreed to shelve the cases of the two British suspects for the foreseeable future.
It remains unclear how many detainees will ultimately appear before a Military Commission, but the Administration has indicated that most of the detainees will not face a commission and will simply be released when they no longer pose a threat—or will remain interned for the duration of the Global War on Terrorism. 69 The Opposing View The Administration’s intent to try selected detainees by Military Commission has received widespread criticism. Spain, for example, has announced it will not extradite terrorist suspects to the United States if they are to face the tribunals.
In essence, the opposing view characterizes the commissions as providing second-class justice. Amnesty International has been most vocal in its criticism, but it has received extensive support from a wide range of scholars and organizations. 71 The critics argue the commissions are discriminatory because they do not apply to US nationals, they allow a lower standard of evidence than is admissible in ordinary courts, there is no right of appeal to an independent and impartial court, and they lack independence from the executive branch.
72 The Army Lawyer, a US Department of the Army periodical, published an article in November 2003 by a retired senior military lawyer that added weight to this view. It noted that the commissions are a departure from long-standing military practice, and they fail to provide the degree of fairness and due process expected in trials conducted by the United States in the 21st century. 73 The US Constitution is designed to provide a system of checks and balances to prohibit, among other things, unfettered power by the executive branch of government.
The recent Supreme Court ruling on Guantanamo Bay is a great example of the system working, with the judiciary deciding that the executive does not have the authority to suspend the detainees’ habeas corpus rights. Many believe the proposed commissions provide unfettered and unchallengeable power to the executive, which contravenes the most basic law principles of independence and impartiality. 74 Since the commissions began, their most ardent critics have included the uniformed US lawyers assigned to the defendants.
These lawyers were successful in halting the first of the commissions, gaining a Federal District Court judge’s ruling on 9 November 2004 that curtailed the executive’s attempts to implement its “forward-leaning” system of justice. The ruling cast doubt on the future of the Military Commissions, as the judge ruled that President Bush had both overstepped his constitutional bounds and improperly brushed aside the Geneva Conventions in establishing Military Commissions. 76 The Administration has successfully appealed this decision, but at this writing the prospect of a counter-appeal remains.