Court Martial Lawyer – Military court still best for Gitmo detainees
By Scott L. Silliman
Upon taking office, President Obama immediately suspended the military commissions at Guantanamo Bay to give his administration time to determine the best system to try detainees suspected of terrorism and violations of the laws of war.
Up until the suspension, the commissions, authorized by the Military Commissions Act of 2006, had been criticized both domestically and internationally for not protecting the rights of detainees and for being overly politicized.
The suspension expires on Wednesday, and the administration has still not announced its plan. In my opinion, there are two possible options — trial in the federal criminal courts or a revised military commission system that uses court martial rules and procedures — and only the latter is truly feasible.
There are inherent problems with prosecuting detainees in our federal criminal courts. Because the detainees would be entitled to full due process rights, their lengthy pretrial detention at Guantanamo Bay and the specific coercive conditions of that detention could pose significant legal challenges for the prosecution.
Further, the CIA has acknowledged that two of the alleged co-conspirators of the Sept. 11, 2001 attacks, Khalid Sheikh Mohammed and Ramzi Binalshibh, were waterboarded, raising questions about whether any of their statements or evidence derived from those statements would ever be admissible in legal proceedings.
There are also security risks surrounding federal criminal proceedings. In prosecuting and (if any are convicted) imprisoning the detainees in the United States, we should anticipate possible terrorist attacks by al-Qaida sleeper cells in any community where they are confined.
The courts-martial system under the Uniform Code of Military Justice — the system we use to prosecute our own service personnel when they commit crimes — has several advantages. Due process rights in courts-martial are substantial and many mirror those in federal courts; for example, hearsay evidence is not admissible, nor are statements made under coercion.
But in contrast to the federal system, the UCMJ system is portable and efficient; courts-martial can be quickly convened and held at any U.S. military facility in the world, thereby obviating the security risks of holding trials in this country.
A conviction, except for capital cases, requires only a two-thirds vote of the jury panel, just as in the current military commission system. Appeals are heard by a five-judge civilian court, which, after close to 60 years, is clearly well-versed in military jurisprudence. These are the same conditions faced by U.S. military personnel during trials and appeals. And any U.S. military facility can be designated as a place of confinement.
After the U.S. Supreme Court in 2006 struck down the first military commission system established by the Bush administration, Congress had the opportunity to create a system that closely adhered to the UCMJ model. I advised lawmakers to do so when I testified before the Senate Judiciary Committee and the Senate Committee on Armed Services in July 2006. But in the face of fierce lobbying by the Bush administration, Congress chose to deviate from that model in several key areas, and those deviations — such as allowing hearsay evidence and, potentially, statements obtained under coercion — have prompted the continuing criticism of the trials at Guantanamo Bay.
The president and Congress now have the opportunity to correct that error and establish a revised military commission system that follows court-martial rules in virtually every respect. Other than clarifying that “Miranda advice” would not be required for someone captured on the battlefield and that a pretrial investigation would not be necessary, military commissions should be like courts-martial in every other way.
A revised military commission system is the far better option. The new administration can readily follow that path.
Scott L. Silliman, a Duke law professor, served for 25 years as an Air Force judge advocate.
Michael Waddington is a court martial lawyer – court martial attorney that defends military personnel worldwide as well as deployed civilian contractors subject to the UCMJ. He defends Army, Navy, Air Force, Marine, Coast Guard, and civilian contractor court martial cases. He has successfully defended military personnel as a court martial lawyer Army Navy Marine & Air Force court martials in Germany, England, Italy, Iraq, Kuwait, Korea, Okinawa, Japan, Yokota, and throughout the United States. military-defense-lawyer-recentcases.htm.
Comments on this entry are closed.