As the United States begins the Guantanamo Bay trials, the principal issue for many in the world will not be the guilt of those accused but whether the United States affords them due process and a fair trial.
Lord Peter Goldsmith, Britain’s attorney general, articulated a widely held view when he recently said, “We in the UK have been unable to accept that the U.S. [military commissions] . . . offer sufficient guarantees of a fair trial in accordance with international standards.”
A military commission is a specialized form of military tribunal–a court of necessity, justified as a needed component of armed conflict, military government or martial law. Unlike courts-martial, which are military tribunals strictly regulated by statute and generally applicable only to our own service members, military commissions are the military’s common-law war courts, traditionally used to try spies, saboteurs and other war criminals. They are almost completely unregulated by statute–thus one must look to military history and custom (customary military law) to ascertain how military commissions operate.
Despite their different jurisdiction, military commissions have always “looked like” courts-martial. They have always followed and applied the principles of law and rules of evidence and procedure applicable at that time in courts-martial.
When Gen. Winfield Scott established military commissions in Mexico in 1847, he ordered that “Every military commission, under this order, will be appointed, governed, and limited, as nearly as practicable, as prescribed by . . . the Articles of War, and the proceedings of such commissions will be duly recorded in writing, reviewed, revised, disapproved or approved, and the sentences executed–all, as near as may be, as in the cases of the proceedings and sentences of courts-martial; provided, that no military commission shall try any case clearly cognizable by any court-martial.”
In adhering to court-martial rules, Scott made it easy for the military officers appointed to the commissions–the rules were the familiar court-martial rules. He also was entirely in accord with the custom of the service, as evidenced by the first recorded military commission–the trial of Maj. John Andre for spying during the Revolutionary War. In fact, that trial was referred to as a court-martial–a term used for both types of tribunal until Scott coined the phrase “military commission.”
President Bush’s order of Nov. 13, 2001, authorizing military commissions (the first such order since the World War II era) did not adhere to this common-law requirement of following–to the extent practicable–present-day court-martial rules. Rather, it was patterned on the World War II model of Ex parte Quirin, the Nazi saboteur case. That military commission (with a few exceptions) closely followed the court-martial rules then in effect in its appointment, composition, procedures and review. Valid in 1942, those court-martial rules, governed by the Articles of War, are now ancient history. In 1950, in response to criticism over the perceived unfairness of World War II courts-martial, the Articles of War were repealed in favor of a new Uniform Code of Military Justice.
The UCMJ made major changes to the court-martial process, including the establishment of a civilian court–now named the U.S. Court of Appeals for the Armed Forces–to review courts-martial. In the intervening half-century, other substantial changes have been implemented, including the creation of a military judiciary in 1968, and provision for certiorari review by the Supreme Court in 1983.
Courts-martial in 2004 are thus vastly different entities from those of World War II. To be valid, military commissions in 2004 must similarly be vastly different from the Quirin model. They should generally follow the current court-martial rules, with such modifications as the president deems necessary.
However, the current commission rules do not resemble those for courts-martial. Instead, the secretary and the general counsel of the Department of Defense have presided over a labor-intensive 2 1/2-year process to produce an entirely new trial structure–one that the participants are now struggling to learn, understand and use, and that both friends and enemies have condemned as fundamentally unfair.
Shakespeare said that a rose by any other name would smell as sweet. The converse is that if another flower lacks the correct aroma, calling it a rose won’t make it so. The tribunals now being assembled in Guantanamo Bay do not pass the judicial smell test. Whatever they are, they aren’t “military commissions,” as that term has been used and understood in American military law for more than 225 years.
Is there a solution? Yes. Article 18 of the UCMJ now provides for trial by general court-martial of “any person who by the law of war is subject to trial by a military tribunal.” Thus these cases are, in the words of Scott, “clearly cognizable by . . . court-martial,” and there is no need and perhaps no justification for resorting to military commissions. However, if military commissions are nonetheless still both authorized and desired, they should, for their own legitimacy, “be guided by the appropriate principles of law and rules of procedures and evidence prescribed for courts-martial.”
Contemporary courts-martial are presided over by military judges exercising judicial power analogous to other U.S. criminal court judges. They are reviewed by a five-member federal civilian court, whose decisions are subject to review in the Supreme Court. Applying these procedures to military commissions will do much toward enabling them to be seen as legitimate criminal trials.
In addition, courts-martial apply familiar, time-tested procedures that could easily–and properly–be modified as needed to meet military commissions’ more lenient evidentiary rules and other exigencies.
The United States has long stood as a beacon before the world: a nation with a tradition and a heritage of adhering to the rule of law, and insisting on due process and justice for all.
Yet in March 2004, the Pew Research Center reported that U.S. prestige in the world community had dropped to its lowest level in history–and that was before Abu Ghraib became public.
If the United States is to do–and to be perceived to do–justice in Guantanamo, and to regain its former role of respected champion of human rights and fair trials, swift action to give legitimacy to these military commissions is urgently needed.
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Kevin J. Barry, a retired Coast Guard captain, is a founder and a director of the National Institute of Military Justice.
