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Lifting the Veil of Secrecy: Reformed Military Commissions Ready to Try 9/11 Suspects

On April 4th, 2012 the Department of Defense (DoD) announced that five 9/11 suspects- Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak Bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi- would be tried jointly at Guantanamo Bay, Cuba by military commission rather than in civilian courts in the United States. The charges, carrying a death sentence, allege that they were responsible for the planning and execution of the September 11th terrorist attacks including: terrorism, hijacking aircraft, conspiracy, murder in violation of the law of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, and destruction of property in violation of the law of war. DoD officials have emphasized that the charges are only allegations of offenses punishable under the Military Commissions Act of 2009, and that they are presumed innocent unless proven guilty beyond a reasonable doubt. The suspects will be arraigned in May.

Military commissions and the use thereof for trial of terrorism suspects has a storied past with both stringent opponents and defenders. Military commissions are courts run by the military to try enemy forces for war crimes and related offenses. The commissions have rules that differ from civilian courts in terms of evidence and secret classifications that are meant to address the difficulties of war and the new type of war being fought. In the end, these rules make it easier to convict a defendant than in an ordinary civilian court. After the 9/11 attacks the Bush Administration turned to military commissions to address the flood of terrorism suspects. The Military Commissions Act of 2006 authorized and detailed the roles of military commissions, but Section 7 (regarding the right to habeas corpus) was struck down by the Supreme Court as unconstitutional in Boumediene v. Bush. The Boumediene Court, however, implied that Congress could create commissions that would pass constitutional muster. Congress subsequently enacted a comprehensive statute governing military commissions in the Military Commissions Act of 2009. The Military Commissions Act of 2009 applies to an “unprivileged enemy belligerent who has engaged in hostilities” (according to the DoD Military Commissions website).

While a Presidential candidate, Obama criticized military commissions and vowed to close the Guantanamo Naval Base prison. Those statements have not come true in part because Congress fought the administration’s effort to transfer Guantanamo prisoners to the U.S., thus forcing the President to not close the prison and not try the prisoners in U.S. civilian courts. Instead the President and Congress have reformed the commissions in an attempt to make them more like civilian courts. Now, with five of the most publicized 9/11 masterminds being prepared for trial by military commission the Obama Administration is touting the reformed commissions as a viable and fair way to try these terror suspects. Attorney General Eric Holder, in a statement on March 2012 at Northwestern University Law School, explained why the administration believes military commissions are similar to civilian courts and why they must at the same time be different: “It’s important to note that the reformed commissions draw from the same fundamental protections of a fair trial that underlie our civilian courts. They provide a presumption of innocence and require proof of guilt beyond a reasonable doubt. They afford the accused the right to counsel – as well as the right to present evidence and cross-examine witnesses . . . . They prohibit the use of statements obtained through torture or cruel, inhuman or degrading treatment. A key difference is that, in military commissions, evidentiary rules reflect the realities of the battlefield and of conducting investigations in a war zone.”

By comparison, the Bush-era military commissions allowed hearsay evidence and coerced statements. There is speculation that statements that were admissible during the Bush-era might have come from torture and are therefore inherently unreliable. The commissions of today, however, no longer permit the use of such statements. Recently, Brig. Gen. Mark Martins who is the chief prosecutor for the commissions gave an interview to NPR stating he has made it his mission (at least until he retires in 2014) to show that the military commissions system at Guantanamo is no longer a toxic twist on justice. Brig. Gen. Martins touts the ability to now watch proceedings on the new closed circuit televisions as one of the main reforms aimed at transparency and fairness. Before, because the proceedings were all secret, in order to actually watch any of the proceedings one would have to get government security clearances and travel to Guantanamo. Those who are curious can now watch the trials on closed-circuit television feeds at selected army bases. To get in to the base citizens just need to show a government-issued picture ID.

The speculation still continues, however, casting doubt over the reformed commissions despite the admonishment by the Obama Administration that things are different today. The doubt that the “new” system really is fair is not without some merit. Some “old” military commission procedures still remain, such as foregoing attorney-client privilege. Defense attorneys and their clients have their communications read by DoD. This is rule is still in place and speaks of a system that carries with it a presumption of guilt of the accused, and basically assumes that the defense attorneys are collaborating with the enemy. Also, this creates a difficult formula for success of defense tactics when the prosecutor knows the defense team’s every move. Several in the human rights community also point out that the military commission’s fairness is lopsided because it favors the prosecution with a jury that is selected by the prosecution and both judge and jury are all military officers. There are also rules to protect classified information, including that the suspects, such as Mohammed, were subjected to water-boarding and other forms of interrogation while being held by the government.

Other troublesome evidentiary standards in military courts, as compared to civilian courts, remain because of the trouble of following domestic procedures abroad. Instead the military courts focus on the evidence’s reliability and probative value, and if the admissibility of the evidence is in the best interest of justice. This includes the allowance of evidence seized outside the United States despite that it was not obtained pursuant to a search warrant. Also, statements of the accused are generally admissible despite the fact that they were obtained without the use of Miranda warnings.

The President of the American Civil Liberties Union openly criticized the Obama Administration’s new stance on military commissions stating, “The military commissions were set up to achieve easy convictions and hide the reality of torture, not to provide a fair trial. Although the rules have been improved, the military commissions continue to violate due process by allowing the use of hearsay and coerced or secret evidence. The American people have already waited far too long for justice for the 9/11 attacks, and the administration’s use of the military commissions means that justice will never truly be achieved, in the eyes of our nation or the rest of the world.”

Whether the trials by military commissions will be fair and truly open is yet to be seen. There are still many aspects of the commissions that happen behind a veil of secrecy. The world will be watching as these five are tried.


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