Military Commissions Set to Continue

18 May 2009, 12:31PM

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The Military Commissions Act was passed in 2006 by the Bush Administration which set up a system described by President Obama as 'deeply flawed' and an ‘enormous failure’¹. The last thing human rights groups expected was for President Obama to continue the system which he so vocally denounced during his election campaign. Read Amnesty International’s response here

"...I objected strongly to the Military Commissions Act that was drafted by the Bush Administration and passed by Congress because it failed to establish a legitimate legal framework and undermined our capability to ensure swift and certain justice against those detainees that we were holding at the time." President Obama ²

President Obama handed down several executive orders the day after he took office including a 120 day suspension of the Military Commissions system. Amnesty International has long been a critic of the system due to the lack of legal protections it offers compared to US civilian courts or military courts martial. Read Amnesty International's concerns with the Military Commission system in the report "USA: Justice Delayed and Justice Denied? Trials Under the Military Commissions Act"

So far, the President has indicated that several key changes will be made to the system. These include;

1. Information obtained through "using cruel, inhuman and degrading interrogation methods will no longer be admitted as evidence at trial". The former system allows for evidence obtained under 'coercion'.

2. Hearsay evidence may still be used, however, the party which brought the evidence to the Commission is now in the position where they must prove its reliability. This is contrary to the former system in which the burden relied on the party which objected to it.

3. The defendant will have a greater say over their military defence counsel. In the prior system, the defendant was appointed a military lawyer which did not provide protections in relation to impartiality. Although, the new system would still rely on military personnel to defend the detainees.

4. If the defendant refuses to testify, the new system will reportedly provide them with greater protections.

5. And lastly, that "military commission judges may establish the jurisdiction of their own courts."

Read President Obama’s full statement here.

However, detainees brought to trial under the military commissions are still in a position where their full rights will not be guaranteed, even with President Obama’s changes. For example, the right to appeal is not guaranteed, military officers serve as judge and jurors (in cases where this is necessary), and the commissions are not open and accessible to the public so transparency is limited. Most concerning of all is that the Commissions system also uses charges not recognised under international law and those charges may be applied retrospectively.

"When I volunteered to assist with this process and was assigned to this office, I expected there would at least be a minimal effort to establish a fair process and diligently prepare cases against significant accused, instead, I find a half-hearted and disorganised effort by a skeleton group of relatively inexperienced attorneys to prosecute fairly low-level accused in a process that appears to be rigged." ³ Captain John Carr (former military prosecutor whose email expressing his dismay with the systems was leaked to the media)

Amnesty International remains seriously concerned that the Obama administration would use any form of military court to prosecute civilians. The continuation of the Bush Administration's references to a 'law of war' framework in circumstances where there is no international armed conflict in the legal sense, is troubling⁴. A civilian federal court system has already demonstrated that it has the capacity to handle terrorism related cases. There is simply no reason why those who remain illegally detained in Guantanamo Bay should not have access to a civilian system of law.

"In my opinion, the Military Commission is disgraceful a chapter in the life of the United States military justice process and despite some changes to the process at Guantanamo it is likely to remain so."⁵ Lex Lasry (Law Council observer for David Hicks 'trial')

Another question remains, what will happen to the three men who were convicted under the former 'flawed' system? How can their convictions stand if the President recognised that the Military Commissions system is an enourmous failure? One man, Ali Hamza al Bahlul, is currently serving a life sentence in Guantanamo Bay. The other two, Salim Hamdan and David Hicks have been released back to their native countries. Australian, David Hicks, is still subject to a suspended sentence.

There are still questions around why President Obama would reinstate the Military Commissions system. With the recent release of the 'torture memos', and repeated allegations of torture, cruel inhuman and degrading treatment continuing to come out of Guantanamo Bay, it becomes clear that the methods in which information has been obtained lends itself to understand why the Obama Administration would want to put these men through a system which does not hold such strong rules of evidence.

References

1. ‘Obama retains Bush-era military tribunals’ http://www.news.com.au/story/0,23599,25491979-2,00.html

2. President Obama, 15th May, 2009, "Statement of President Obama on Military Commissions". Office of the Press Secretary. Retrieved 19th May, 2009 from http://www.whitehouse.gov/the_press_office/Statement-of-President-Barack-Obama-on-Military-Commissions/

3. Leigh Sales (2005) “Leaked emails claim Guantanamo trials rigged”

4. Amnesty International “USA: Any Return to Unfair Trials Must be Rejected”

5. Lex Lasry QC, "Further Thought". Presented at the Manning Clark House Day of Ideas in Perth: A Human Rights Act for Australia? 2 -3 September 2005 http://www.manningclark.org.au/html/Paper-Lasry_Lex-Further_Thought.html

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