The Military Commissions have been revamped in an attempt to legitimise an already broken system. Amnesty International has always believed that those who perpetrate criminal acts should be held to account, however, justice can only be served in a transparent, impartial and fair legal proceedings independent of political interference.

"The military commissions cannot be fixed, because their very creation-and the only reason to prefer military commissions over federal criminal courts for the Guantanamo detainees-can now be clearly seen as an artifice, a contrivance, to try to obtain prosecutions based on evidence that would not be admissible in any civilian or military prosecution anywhere in our nation." Lieutenant Colonel Darrel Vandeveld1

Amnesty International has raised concerns about the reinstatement of the Military Commissions system, even with the changes. Read the Amnesty International Report, "Trials in Error: Third go at a Misconceived Military Commission Experiment" here. Yesterday, Presidnet Obama signed off on the 2009 Military Commissions Act(1515 pages). What do the changes actually mean? And, why will they not afford a fair and transparent trial free from political interference?

The Improvements

In a step closer to fairness, the amendments mean that now experienced capital defense attorneys will be allowed to participate in death penalty cases; something that should have been afforded in initial cases. The defense counsel will also have greater access to witnesses and evidence which could assist their clients. This has been a significant barrier preventing defense lawyers from gaining significant evidence to assist their clients.

Why the changes are not good enough

The amended Military Commissions System still allows hearsay evidence and evidence obtained through ‘coercion’ upon approval by the secretary of defense. This is unacceptable if a legitimate outcome is the goal. Amnesty International has continued to urge the Obama administration try the men held as suspects in a US federal court, or if there is not enough evidence, or the evidence has been tainted by the way it was obtained, then they should be released. If the US has used techniques which contravene the Convention against Torture, why should the men subject to the unlawful interrogations be left to further suffer due to their captors cruelty?

The Military Commissions still have a broad definition of who can be subject to the system. The system calls them "alien unprivleged enemy belligerents" (prior to this they were referred to as "unlawful alien combatants"). According to the Military Commissions Act 2009, you are considered 'alien' if you are not a US citizen. Of most concern, is that it does not prohibit the prosecution of children, which not only defies logic, but also contravenes UN protections for children caught up in armed conflict. Military Commissions still allow retrospective prosecution which is prohibited under the International Covenant of Civil and Political Rights (ICCPR). It will also prosecute people for crimes which are not traditional law of war crimes, such as ‘material support for terrorism’, which is the charge used against Australian, David Hicks, and Yemeni national Salim Hamdan.

Many former Bush appointed prosecutors and defense lawyers have resigned due to the political nature of the commission trials and their lack of transparency and impartiality. They have labeled the commission process as ‘rigged’ to gain convictions, and a ‘fraud on the American public.”2

The families of the 9/11 victims deserve justice, but not blind justice. If the men accused of these attacks are brought to trial through the military commissions process rather than regularly constituted fair and impartial courts, they will most likely be convicted. But, the outcome will never be accepted as fair or just.

“The military commissions are inherently flawed and should not be continued in any form. Even in attempting to improve them, Congress has missed the mark, failing once again to provide the basic due process rights guaranteed by the Constitution and international law”3 Christopher Anders, ACLU Senior Legislative Counsel

The people who have been imprisoned in Guantanamo Bay for years should have their day in court. But prosecuting them in a system which does not protect fundamental fair trial standards will not ensure a fair or just outcome for anyone involved.

References

  1. See “Jawad Case Turned Prosecutor Into Military Commissions Foe” http://washingtonindependent.com/49997/jawad-case-turned-prosecutor-into-military-commissions-foe

  2. See “Prosecutors allege Guantanamo military commissions rigged” at http://www.abc.net.au/7.30/content/2005/s1427592.htm

  3. See ACLU media release at http://www.aclu.org/safefree/general/41256prs20091007.html?s_src=RSS