Military Tribunals

This weeks debate on the Military Tribunal legislation was not something to give one confidence. The fact that the administration had been holding 14 detainees in secret CIA detention doesn't help, and gives further leverage to those loudly protesting the secretiveness of the administration.

This OpinionJournal piece gives some interesting context to these tribunals with relations to trials held related to the Yugoslav war crimes and discusses some of the foolishness that seems to keep popping up related to Common Article 3 of the Geneva conventions.

As it enacts new rules for military commissions, Congress--as well as the public--should keep two overriding principles in mind. One: While the jihadists detained at Guantanamo Bay must have due process of law before they can be criminally punished, they are not--despite a billowing cloud of confused reasoning, misleading testimony and downright propaganda--entitled, under the U.S. Constitution or relevant international law, to the same level of procedural protections enjoyed by the lawful soldiers of sovereign states. Two: The methods of warfare employed by unlawful combatants in the war on terror fully justify extraordinary trial rules.

Let's take the first issue. In Hamdan v. Rumsfeld, the Supreme Court invalidated the Pentagon's original military commission rules, holding that they must be the same as in American courts martial. But it reached this conclusion only because of language--requiring military commission and courts-martial procedures to be "uniform insofar as practicable"--in the Uniform Code of Military Justice. Congress can and should change this language.

As to international law: Under the Geneva Conventions, captured enemy soldiers accused of criminal violations are entitled to courts-martial procedures only if they qualify as "lawful" or "privileged" combatants. At a minimum, this requires their association with a group that has a regular command structure, wears uniforms, carries its arms openly, and obeys the laws of war--including the injunction against deliberate attacks on civilians. Al Qaeda and its allies do not qualify.

I continually am fascinated with the contention that these illegal combatants deserve the same protections as those who observe the requirements. I've even heard the screeching from the fever-swamp that if we don't provide them such protections our soldiers won't receive them either. This is blindingly stupid, since it's already obvious that our military aren't receiving and never will receive such protections because the people we are fighting don't recognize the Geneva Conventions in any manner.

These procedures are also consistent with current international norms. Both the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda have routinely closed portions of trials (Slobodan Milosevic's trial proceedings were on many occasions closed to the public), and their rules permit the admission of "any relevant evidence . . . deem[ed] to have probative value," including hearsay. The International Criminal Court also permits closed proceedings--to protect, among other things, "confidential or sensitive information"--and follows highly discretionary evidentiary rules.

But can a defendant himself properly be excluded from any part of his trial, effectively keeping the identity of at least some witnesses secret? This implicates a core right of confrontation, and makes it more difficult to ensure a fair trial. However, there are a number of possible measures that can protect the defendant's interests. For example, a particular witness's identity may be hidden from the defendant, but not his lawyers. The judges may be required to discount, but not disregard, evidence that the defendant has not himself seen.

Congress should realize that, while the key test in any trial is whether the defendant has had a full and fair hearing and a meaningful opportunity to defend himself, the military and civilian justice systems can meet these goals in different ways. Also--and despite the occasionally hysterical critics of the administration--there is no established international law bar to keeping some evidence from the defendant in exceptional circumstances. Common Article 3 of the Geneva Conventions does not address the issue. It simply requires that defendants be afforded "all the judicial guarantees which are recognized as indispensable by civilized peoples."

What these indispensable guarantees include are not settled in international law. In practice, U.N. criminal tribunals have permitted numerous ex parte contacts between prosecutors and judges, as well as significant limits on the defendant's right of confrontation. In the Yugoslav Tribunal, witness statements rather than live testimony have been allowed, as have depositions from other trials which the defendant's lawyers have not had the opportunity to contest.

That is very interesting information. These trials were held by the Hague, and if the US can get the details something similar to what they are already doing, there should be substantially less complaints. The US won't escape the whining of the Human Rights groups, since they seem to believe that the US is completely incapable of performing fair trials, but that won't negate that the tribunals are at least going to be within the same realm of legitimacy as those provided in the Hague.

Now if they can just finish the details and get them enacted, maybe the complaints about GITMO can be taken to a finale.