Bob Egelko: Military tribunals not the same as U.S. courts


Richard Moore

Military tribunals not the same as U.S. courts

Saturday, May 23, 2009

President Obama says his proposed reforms to the military commissions his predecessor established to try suspected terrorists will bring the tribunals “in line with the rule of law.” But it isn’t the same law that applies in U.S. courts.

Pentagon officials appoint the judges and can remove them. Military commanders choose the jurors, who can convict defendants by non-unanimous votes, except in death penalty cases. The military can monitor defense lawyers’ conversations with their clients.

Prosecutors can also present evidence that would never pass muster in civilian courts. Confessions made under physical or mental pressure could be admissible, despite Obama’s disavowal of torture and coercion. There’s no ban on evidence from illegal searches. And defendants may be convicted on the basis of hearsay – a second hand report of an out-of-court accusation by another person, perhaps a fellow suspect, whom the defense never gets to see or question.

Civil-liberties advocates and legal organizations defending prisoners who may be tried before the commissions say the system is an invitation to abuse and differs little from the tribunals established by President George W. Bush.

“The system is designed to ensure the outcome they want … convictions in every case,” said Ben Wizner, an American Civil Liberties Union attorney who has attended proceedings for prisoners at the U.S. naval base at Guantanamo Bay, Cuba. “This suggests that the much-heralded improvements to the Bush military commission system are largely cosmetic.”

Another Guantanamo observer, Stacy Sullivan of the advocacy group Human Rights Watch, said Obama’s changes move in the right direction, but the president still hasn’t explained why the cases can’t be handled in civilian courts.

“Terrorism suspects should be tried in an independent court whose verdict, and the process, can’t be second-guessed,” she said.

roper forum’

In his speech Thursday at the National Archives, Obama promised to charge terrorism suspects with crimes in federal courts “whenever feasible.” But he said military commissions, with proper safeguards, are a proper forum for war-crimes trials.

“They allow for the safety and security of participants, and for the presentation of evidence gathered from the battlefield that cannot always be effectively presented in federal courts,” Obama said.

He also said some Guantanamo prisoners can’t be prosecuted successfully “because evidence may be tainted” – an apparent reference to confessions given during brutal interrogations – but are too dangerous to release and would be kept in “prolonged detention.” Congress would have to approve any such plan, and the Supreme Court has ruled that prisoners could challenge their confinement in federal court.


Some conservatives said Obama’s words vindicated Bush, who won congressional approval for the current military commissions in 2006 over the opposition of then-Sen. Obama.

“Critics can no longer dismiss this by saying (the commissions) were peculiar obsessions of Dick Cheney and George Bush,” said David Rivkin, an attorney who served in the administrations of Ronald Reagan and George H.W. Bush.

Military commissions are essential to try enemy combatants, Rivkin said, because incriminating evidence often won’t meet standards established by civilian courts. “If you have virtually no chance of obtaining a conviction, that’s not a viable justice system,” he said.

Eugene Fidell, president of the nonpartisan National Institute of Military Justice, countered that the government shouldn’t create a separate court system to make things easier for prosecutors.

“The federal courts have prosecuted scores of terrorism cases,” said Fidell, who teaches military law at Yale Law School. “President Obama has not justified the use of military commissions any more than President Bush did.”

Like courts-martial, military commissions employ officers as judges, lawyers and jurors and allow convictions in non-capital cases by non-unanimous verdicts.

But unlike courts-martial, governed by laws that protect judges’ independence and mirror civilian courts’ rules for trials, military commissions operate under a law that leaves the proceedings largely in the hands of the Defense Department. One illustration came a year ago, when the Pentagon-appointed chief judge at Guantanamo removed a judge who had criticized prosecutors’ handling of evidence in a case.

Military officials also pick the appellate tribunal that reviews convictions. A defendant can then take the case to a federal appeals court, but its review is mostly limited to whether the trial followed Pentagon rules.

earsay testimony

Evidence standards are much more permissive than in military or civilian courts, which ban most types of hearsay testimony. Military commissions allow hearsay if the judge decides it is reliable.

One of Obama’s proposed changes to Bush’s military commissions would require the prosecution to prove that hearsay testimony is reliable, replacing a law that forces the defense to prove unreliability.

Obama also wants to eliminate a rule that allows jurors to consider a defendant’s refusal to testify as possible evidence of guilt, and to exclude all confessions extracted by “cruel” interrogations, regardless of whether they involved torture.

But the commissions might hear statements produced by tactics that would be barred in court – for example, the technique known as the “frequent flier” program, in which prisoners are awakened and moved to new cells every few hours for questioning.

Defenders of the commissions say courtroom rules shouldn’t be applied to battlefield conditions.

Security issues

Scott Silliman, a Duke University law professor who was an Air Force lawyer for 25 years, said Obama’s proposals would make the commissions fairer. The administration is justified in preferring an alternative to civilian trials, which would pose “an enormous security issue,” he said.

But Madeline Morris, who heads Duke’s Guantanamo Defense Clinic and formerly was chief legal adviser to defense lawyers at the military commissions, said the tribunals should be scrapped if Obama wins approval for a limited system of “preventive detention” for dangerous prisoners who can’t be prosecuted successfully.

Even if the administration solves the many legal and logistical problems that surround the commissions, Morris said, “the convictions won’t be perceived as legitimate.”

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This article appeared on page A – 1 of the San Francisco Chronicle