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The Military Tribunals on Trial

Among the many defects of President Bush’s order for military commissions to try suspected al-Qaeda members or supporters is that it lumps together at least four categories of persons who have distinct sets of rights under either domestic or international law. The four categories of persons subject to trial by military commissions under the President’s order are: (1) prisoners of war captured in Afghanistan; (2) unlawful combatants arrested in Afghanistan or elsewhere in the world outside the United States; (3) illegal aliens in the United States or aliens who came to the United States legally—as with student or visitor visas—but with the alleged purpose of engaging in terrorism; and (4) legal aliens with permanent resident status who are accused of engaging in terrorist acts.

As written, the order violates, in different ways, the rights of all four categories; it recalls Clemenceau’s famous comment about the Dreyfus case that “military justice is to justice as military music is to music.” Fortunately, public debate over the order has been far more extensive than it has been over the many other violations of rights by the Bush administration since September 11.1 In consequence, the President’s order is being modified by Defense Department regulations and Jus-tice Department practice. These developments demonstrate that even at a time when a commencement speaker at a university is booed off the stage for giving a talk about constitutional rights,2 and when only one member of the US Senate voted against sweeping federal legislation abridging civil liberties,3 it is possible for rights advocates—along with some of the officials within the federal bureaucracy itself—to take on an overwhelmingly popular president and force him and his administration to back away from draconian measures.

The first two categories of people subject to trial—prisoners of war and unlawful combatants arrested outside the United States—derive their rights from international law. The essential difference between the two is that prisoners of war engage in open, announced combat in accordance with the customs of war. Unlawful combatants, on the other hand, attempt to conceal their activities. They include those who disguise themselves as civilians as well as spies, saboteurs, and terrorists. Under international law, in particular the Geneva Conventions, both categories may be tried before military tribunals. It is true that there is no mechanism for international enforcement of the Geneva Conventions other than public pressure. But the conventions set forth clear legal standards that the US has agreed to observe, and failure to do so will be seen as a violation of fundamental international law.

The Third Geneva Convention of August 12, 1949, ratified by the United States Senate on July 6, 1955, defines prisoners of war as:

(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

(a) that of being commanded a person responsible for his subordinates;

(b) that of having a fixed distinctive sign recognizable at a distance;

(c) that of carrying arms openly;

(d) that of conducting their operations in accordance with the laws and customs of war.

(Article 4)

In Afghanistan, neither Taliban fighters nor members of the Northern Alliance have worn uniforms. Therefore the requirement of a “fixed distinctive sign” can’t be met literally; but since most of these combatants were not attempting to disguise themselves as civilians pretending to be other than what they were, the lack of uniforms should not prevent those captured in combat from being recognized as prisoners of war. Whether they are Afghans, Pakistanis, Arabs, or of some other nationality is immaterial. It is the kind of combat in which they were engaged that determines their rights.

As written, President Bush’s order does not allow a defendant to be represented by counsel of his own choice, only to have an attorney provided to him. Article 105 of the Third Geneva Convention, on the other hand, states that “the prisoner of war shall be entitled…to defense by a qualified advocate or counsel of his own choice.” Apparently, this conflict with the laws of war is being rectified by regulations drafted by the Defense Department. The New York Times has reported that “under the draft regulations, defendants would have military defense lawyers appointed for them but would also be able to hire civilian lawyers.”4

President Bush’s order explicitly prohibits the right of appeal, providing only for “submission of the record of the trial, including any conviction or sentence, for review and final decision by me or by the secretary of defense if so designated by me for that purpose.” By contrast, Article 106 of the Third Geneva Convention requires that

Every prisoner of war shall have, in the same manner as the members of the armed forces of the Detaining Power, the right of appeal or petition from any sentence pronounced upon him, with a view to the quashing or revising of the sentence or the reopening of the trial. He shall be fully informed of his right to appeal or petition and of the time limit within which he may do so.

Here too, the draft regulations are reported to modify the President’s order. As the Times reported,

One administration official said that after the verdict and sentencing by the tribunal, which is to be composed of at least five uniformed officers, a separate three-member panel would review the decisions. The appeal panel would accept arguments and pleas from the defense lawyers and would then make a recommendation to the secretary of defense.5

This is a step in the right direction, but it does not meet the standard of Article 106, which would give prisoners of war the same right as American soldiers to take their appeals to US civilian courts after they exhaust their remedies within the military justice system.

It remains to be seen, moreover, whether the regulations will also address such issues as the rights of a prisoner of war under the Geneva Convention to be tried by a tribunal which provides “essential guarantees of independence and impartiality” (Article 84); the right to call witnesses (Article 105); the right to confer with his attorney in private (Article 105); and the right not to be coerced into admitting guilt (Article 99). There is also, according to Article 87, the right not to be “sentenced by the military authorities and courts of the Detaining Power to any penalties except those provided for in respect of members of the armed forces of the said Power who have committed the same acts.” This last right, of course, sets an important limit on the use of the death penalty.

Though the terms of President Bush’s order could apply to prisoners of war, it appears that its main purpose is to provide a means of bringing to justice unlawful combatants such as those who conspired to blow up the US embassies in East Africa and to hijack planes and use them as weapons on September 11, 2001. The order gives the President exclusive authority to determine that a person “is or was a member” of al-Qaeda; has “engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor”; or has “knowingly harbored” such persons. This order is dangerously sweeping. For example, an Irish-American immigrant who participates in a fund-raising event for widows and orphans of those killed in the struggle in Northern Ireland could be hauled before a military tribunal for aiding or abetting international terrorism.

No standards for making such determinations are provided in the order, which explicitly prohibits recourse to any court in order to question the President’s unilateral decisions. Here again, the order runs afoul of the Third Geneva Convention. Though the convention’s purpose is only to protect prisoners of war, it makes the question of whether someone in a doubtful case is entitled to such status subject to determination “by a competent tribunal.” Until that has happened, “such persons shall enjoy the protection of the present Convention” (Article 5). That is, a suspected al-Qaeda terrorist captured in combat in Afghanistan must be treated as a prisoner of war until a court says he is not entitled to such status.

Once a court decides that a prisoner is an unlawful combatant, his rights under international law diminish substantially but they do not entirely disappear. The question of those rights is addressed in the 1977 First Additional Protocol to the Geneva Conventions. Though not ratified by the United States, some provisions of the First Additional Protocol are so widely accepted that they are recognized as expressing norms of customary international law which, for the past century, the United States has accepted as binding.6 Among the provisions with the apparent degree of support that qualifies them as customary international law is Article 75, which deals with the due process rights of “persons who are in the power of a Party to the conflict and who do not benefit from more favorable treatment under the Conventions.”7 The protocol says that, at a minimum, the rights of such persons include trial “by an impartial and regularly constituted court”; “all necessary rights and means of defense”; the right to be “presumed innocent until proved guilty according to law”; the right not to “be compelled to testify against himself”; “the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf”; and the right to “be advised on conviction of his judicial and other remedies.”8

In any case, whether people arrested qualify as prisoners of war or not, according to Amnesty International, the housing at Guantánamo Bay of detainees in six-by-eight-foot chain-link “cages” that are “at least partially open to the elements” falls “below minimum standards for humane treatment.”

Neither the Third Geneva Convention nor Article 75 of Protocol I addresses the quality of the evidence that may be used against a defendant. Under the Uniform Code of Military Justice (UCMJ), American soldiers benefit from much the same rules about admissibility of evidence as defendants in our federal civilian courts—except to the limited extent that they and their quarters are subject to search without judicial approval. The UCMJ also explicitly applies to trials of those captured by the United States who are entitled to prisoner of war status. But it appears that the Department of Defense regulations for the new military tribunals will be far more permissive, for example, allowing the use of hearsay testimony. Here the Geneva Conventions and the First Additional Protocol provide no protection for defendants. Both treaties reflect an international consensus on the principles of due process that are universally required; and since the civil law inquisitorial systems of continental Europe and much of the rest of the world are far more tolerant with respect to the admissibility of evidence than the common law–based adversarial system of justice of the United States, no such consensus has emerged. This leaves the authors of the Defense Department regulations unconstrained by international law when it comes to hearsay evidence.

  1. 1

    The violations include secret detentions of thousands of aliens, secret proceedings against them before immigration courts, Justice Department authorization of electronic eavesdropping on conversations between lawyers and their clients, and new anti-terrorist legislation that permits authorities to detain noncitizens indefinitely without meaningful judicial review.

  2. 2

    Timothy Egan, “In Sacramento, a Publisher’s Questions Draw the Wrath of the Crowd,” The New York Times, December 21, 2001, reporting that Janis Besler Heaphy, publisher of The Sacramento Bee, was driven off the stage at California State University in Sacramento for questioning the government’s response to terrorism.

  3. 3

    Senator Russell Feingold, Democrat of Wisconsin, was the lone senator to vote against the USA PATRIOT Act.

  4. 4

    Neil A. Lewis, “Rules on Tribunal Require Unanimity on Death Penalty,” The New York Times, December 28, 2001.

  5. 5

    Lewis, “Rules on Tribunal Require Unanimity on Death Penalty.”

  6. 6

    The question was considered by the US Supreme Court in The Paquete Habana, 175 US 677 (1900) holding that the United States is obliged to respect customary international law.

  7. 7

    At a news briefing on January 11, Secretary of Defense Donald Rumsfeld said that “as I understand it, technically unlawful combatants do not have any rights under the Geneva Convention.” This is misleading, since they do have rights under the norms articulated in the First Additional Protocol. On the other hand, Rumsfeld added that “we do plan, for the most part, to treat them in a manner that is reasonably consistent with the Geneva Conventions.”

  8. 8

    Writing in The New York Times (“The Rules of War Can’t Protect Al Qaeda,” December 31, 2001), Professor Ruth Wedgwood of Yale Law School and Johns Hopkins University dismisses Protocol I as a “draft.” It is not a draft; it has been ratified by 159 countries. An expert who conducted a study of Protocol I for the US Joint Chiefs of Staff, Lieutenant Colonel B. Carnahan, noted a number of provisions of the Protocol that either “accurately reflect customary international law or are promising candidates for such status.” Among these is Article 75. See Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (Clarendon Press/Oxford University Press, 1989), pp. 64–65.

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