At the terrorist trials, hearsay evidence will be allowed, conversations between defendants and lawyers can be monitored in some circumstances. Exculpatory evidence can be kept secret from suspects. And appeals will go to a panel selected by the same government official who helped establish the commissions: Defense Secretary Donald H. Rumsfeld.
Special military trials for four prisoners charged with al Qaeda activity will start in this building at the Guantanamo Bay naval base in Cuba. (Pool Photos Mark Wilson)
Military defense lawyers and human rights activists have condemned the proceedings as “fundamentally unfair.”
But Bush administration officials say they are doing the best they can to balance the nation’s security interests against due process rights. They say they have incorporated key elements of the U.S. justice system in the military commissions: Suspects are presumed innocent until proven guilty. They do not have to testify. Guilt must be established beyond a reasonable doubt. The suspects have been afforded free counsel.
“We want to get this right,” said John D. Altenburg Jr., a retired Army major general who is supervising the commissions.
Military officials said prosecutors and the commissioners will not discuss the cases and are requesting that their names be kept secret for security reasons. Legal analysts say few new details about the four suspects are likely to emerge, but military lawyers for the alleged terrorists are expected to attack the legitimacy of the commissions and the impartiality of the officers selected to hear the cases. They are also expected to question the rules and procedures of the commissions as well as the charges brought against their clients, according to motions filed last week.
The courtroom, framed by blue velvet curtains and flags from the armed forces, has been secured and swept by teams of bomb-sniffing dogs amid heightened security operations at Guantanamo Bay. Reporters and human rights activists permitted to attend the proceedings are not allowed to move between buildings on the base without military escorts. A courtroom sketch artist will not be permitted to portray the faces of the commission participants, including the defendants. Television cameras are not permitted in the courtroom, and videographers must clear videos of exterior shots with security officers.
Despite criticism that the commissions do not follow internationally accepted rules of law or procedures commonly used in military courts, U.S. officials pledged yesterday that the Guantanamo Bay trials will be fair. Prosecutors said they are prepared to go to trial as early as Sept. 28 for one of the suspects, an Australian citizen named David Hicks.
“Each of the accused will be given full and fair trial in a manner that protects our national security,” Navy Lt. Susan M. McGarvey, a spokeswoman for the commissions, told reporters at the Navy base yesterday.
Defense attorneys assigned to the cases say the composition of the commissions and their rules and procedures will make it difficult, if not impossible, for their clients to get fair trials. They also say the president, the secretary of defense and the attorney general have all proclaimed publicly that the defendants are terrorists and the “worst of the worst,” statements possibly prejudicing the military officers who will serve as jurors.
“Most people are extremely hostile toward terrorists and I understand that, but people should worry about this,” said Navy Lt. Cmdr. Philip Sundel, a military attorney assigned to defend one of the suspects. “These commissions are a lie behind the claim that all men are created equal, that we are innocent until proven guilty, that we as a society believe in the rule of law above all else.”
President Bush issued an executive order Nov. 13, 2001, reviving a military justice system that has not been used in nearly 60 years. Bush said the commissions, which have been used to try the Lincoln assassination conspirators, Nazi saboteurs and Japanese war criminals, would permit the government to use a blend of secret and public hearings to try foreigners charged with committing, threatening or aiding terrorist acts.
What has emerged during the past 33 months is a military justice system that borrows heavily from commissions of the past with a few modifications, but is also a work in progress. Critics of the commissions say they are fraught with potential conflicts, such as permitting the presiding officer, who will serve as a judge of sorts, to take part in the deliberations over guilt or innocence.