The recently commenced pre-trial hearings regarding the alleged sponsors of the September 11th attacks in New York City brings firmly into the spotlight, the use of military commissions in the trial of those who are designated as enemies of the American state.
Whatever the appellation given to the defendants, be it ‘unlawful combatants’ or ‘terrorists’ or ‘saboteurs’ or ‘assassins’, the unlettered view of the man-in-the-street perhaps tends towards the view that military justice is much shorter than that dispensed in the civilian sector and that it comes with a brutally managed precision which does away with the strict protections afforded to the individual by the ‘conventional’ criminal law courts.
But if this impression of the use of military tribunals appears to be somewhat lopsided, it would not have escaped the attention of the unerring observer that despite a series of confrontations between the American executive and its judicial counterpart in which the Supreme Court has consistently ruled against the use of military courts in preference to civilians ones in the conduct of proceedings against alleged operatives and adherents of Al-Quaeda, President Barack Obama has insisted on trying Khaled Sheik Mohammad and four others before a specially constituted panel of military officers and military lawyers at the naval base in Guantanamo Bay.
While it is the case that the concept of a military court does not mean that the principles of natural justice and due process are comprehensively abandoned, the suspicion is that the authorities are insistent on opting for the military route because it will guarantee the finding of guilt as well as the execution of Mohammed.
And to do this, the ad hoc nature of specific tribunals such as this one alongside an insistence on a ‘modification’ of the conventional process of dispensing justice for reasons of ‘national security’, entails that a defendant will not be as assured of a reliance on the strict rules of procedural even-handedness.
The Supreme Court after all rejected in 2006 a Bush administration-proposed military commission in the context of the Guantanamo security regime on the grounds that it imposed an intolerable deficit on the sum rights of the defendant.
By resuscitating the military option, the American government is putting itself under tremendous pressure to avoid the inevitable label of ‘show trial.’
While Colonel James Pohl, the army officer presiding over the hearing of Mohammed will doubtless officiate in a manner devoid of the hysteric fury of a Roland Freisler and refrain from employing crude ideological rhetoric reminiscent of Andrey Vyshinsky, the mechanism within which he will be working is considered by many human rights groups and even former military officers as being too secretive and weighted decisively in favour of the prosecution.
It is useful at this point to distinguish between those trials which proceed under the court-martial system and those which may be required to be conducted under the auspices of a military commission.
Such distinction involves separating those who are adjudged as ‘lawful combatants’ under the Geneva Convention rules governing the conduct of war from those who are ‘unlawful combatants’.
The former in essence consist of members of the armed forces of the nations at war and enjoy immunity for actions which comply with the law of war. They have prisoner-of-war status and if charged with the violation of laws must be tried under the court-martial system of the nation which has captured them.
The latter, on the other hand consist of civilians who actively partake in hostilities. By doing so, such civilians violate the rules of law and are considered to be ‘unlawful combatants’ and under Common Article 3 of the convention are entitled, it may be argued, to be tried through a legal mechanism which may be less protective of the rights accorded to soldiers.
There is, for instance, no right to public trial. In other words, secrecy is condoned on the grounds of protecting state secrets, and there is no right to trial by jury; the judges of procedure and fact being military officers.
The Supremacy Clause of the United States Constitution expressly incorporates into American law the provisions contained in the treaties to which it is a signatory nation. These provisions may be formally enshrined in statute or, in some instances, be directly enforced by the judiciary.
Two months after the September 11 outrage, President George Bush issued a military order designed to facilitate the newly inaugurated ‘War on Terror.’ It directed the US secretary of state for defence to “detain any non-citizens who were members of terrorist organisations such as Al Quaeda who engaged in, aided or conspired to commit international terrorist acts against the United States or its citizens.”
The order further empowered the secretary of defence to establish military tribunals, alternatively known as military commissions, to conduct trials of non-American citizens accused of terrorist offences either on American or on foreign soil.
Bush’s order specified that such defendants would receive "many but not all of the protections provided by a civilian criminal court." Among the standard rights afforded are those of ‘innocent until proven guilty’, a burden of proof on the prosecution with the standard pegged at beyond all reasonable doubt, adherence to the double jeopardy principle and the right to plea bargain.
However, rather critically, the exclusionary rule which operates to nullify illegally seized evidence was not included and neither was a procedure allowing appeals against conviction to be made via a channel to civilian judges.
President Obama’s revival deemed in some quarters as a betrayal of an election promise to close down Guantanamo Bay Detention camp and implicitly, the procedures associated with it, is criticised despite his slight modifications which include excluding information obtained by "particularly brutal methods" and limiting the use of hearsay evidence
Military tribunals, as with other legal constituted panels of justice, are expected to operate according to the principles of natural justice at the heart of which lie two key tenets: The nemo judex in causa sua rule, translated into English as the rule against bias and the audi alteram partem rule, the right to a fair hearing.
Of ‘fairness’, certain commonsensical prerequisites have to be met, notably that parties are given prior notice of the hearing, that each is granted the opportunity to state their case, that the defendant’s right to legal representation be respected, that the hearing be conducted in an impartial manner and that a decision be rendered along with the reasons for it.
But all notions of fairness become compromised when the circumstances of detaining Al Quaeda suspects and the procedural rules governing the trial process of defendants such as Abd al Rahim al-Nashiri, the alleged mastermind of the bombing of the USS Cole, as well as Sheik Mohammed and his cohorts are examined.
The background to the apprehension and detention of those allegedly associated with the Cole and September 11 attacks reveal a narrative consisting of extraordinary renditions, 'black site' prisons, waterboarding, interception of lawyer-client communications, the elaboration of procedural rules after the preferment of charges with the effect of retroactive application of certain rules, and a failure to provide for discovery.
It is no surprise therefore that several prosecutors have determined their positions to be untenable; opting to resign owing to ethical misgivings about the operation of the military commissions.
It is also a great concern that the aforementioned techniques of detention under the Guantanamo regime have been persuasively argued by many eminent figures to constitute a species of torture under the provisions of international agreements to which the United States is a signatory state.
And notwithstanding the still uncertain position of the non-state affiliated terrorist cells which are composed of the typical Al Quaeda fighter when captured and held as prisoners, the implemented military commission policies appear to offer such detainees rights which fall short of the minimum afforded by Common Article 3 of the Geneva Conventions which includes protection from the “passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples.”
In other words, even if the United States government prefers to designate Al Quaeda detainees as ‘illegal combatants’ rather than as ‘lawful combatants’ in a subsisting ‘War on Terror’, it is in the considered opinion of many experts in international law to be failing to adhere at a minimum level of legally acceptable standards.
The study of the torture techniques applied at the Guantanamo Bay Detention camp is well documented. They include sexual assault and humiliation, sleep deprivation, solitary confinement and isolation, mock executions, temperature manipulations and watching others being tortured.
Al- Nashiri was held captive in secret CIA ‘black sites’ in ‘Afghanistan, Thailand and Poland and has been subjected to both waterboarding and mock executions while Khaled Shiek Mohammed was apparently waterboarded 183 times in one month.
These transgressions would render as inadmissible any evidence tendered in a ‘conventional’ court by the prosecution as being the voluntary signed confession of an accused.
The use of military commissions in United States history, spanning the period of the American Revolutionary War to the present War on Terror has not been without controversy and a certain amount of misgiving.
General Washington’s ‘board of inquiry’ which tried and hanged an accomplice of the Benedict Arnold, was the precursor to the formal military commissions which were established to try guerrillas and other irregulars during the Mexican-American War of 1846 to 1848.
Military commissions were used to try eight alleged accomplices of John Wilkes Booth, President Lincoln’s assassin, as well as two squads of English-speaking German saboteurs put aground by submarines at locations in New York and Florida during the Second World War.
Four of the eight accomplices to Lincoln’s murder were hanged and the others received prison sentences while of the eight German accused, six were convicted and put to death.
The constant factor in the vast majority of these trials, held as they were in the context of national emergency, is the sub-text that few if any acquittals of presumed enemies of the state were ever going to be the logical denouement of the process.
Indeed, the Nuremberg Trials, often viewed through rose-tinted lenses as the high-water mark of the successful application of international principles of law via an established series of military commissions, has always had its detractors.
Senator Robert Taft, at the cost of his presidential aspirations, was vehement in his condemnation of what he felt was the ‘victor’s justice’ of the allied side. Certainly US Chief Justice Harlan Stone tended to agree with Taft when writing in a private letter that the Nuremberg Trials were a “high-grade lynching party.”
That Andrey Vyshinsky, the chief prosecutor at Stalin’s infamous ‘show trials’ and the representative of the gulag-operating totalitarian Soviet state which had recently massacred thousands of the Polish intelligentsia at Katyn Forest, sat in judgement at the proceedings spoke volumes about the relativism of achieving justice.
The atmosphere of siergerjustiz, German for ‘victor’s justice’ certainly permeated the circumstances surrounding the trial of the alleged perpetrators of the Malmedy Massacre.
The background to this notorious war crime was the ‘Battle of the Bulge’, Hitler’s last desperate gamble to turn the tide of the war through an offensive in the Ardennes. With German supply lines stretched to the limit and very little in the manner of material and manpower resources to keep large bodies of allied prisoners of war, 80 American troops were murdered by members of an SS Panzer Unit.
At the subsequent trial held under the auspices of the Dachau Military Commission, the commander of the unit, SS Lieutenant Colonel Joachim Pieper and 42 other soldiers were convicted and sentenced to death with 30 others received varying terms of imprisonment.
The trial gained a notoriety of its own when it was reviewed and arguably presents a salutary case study of what happens when the rules of natural justice are dispensed with. It may arguably have parallels with that of the ongoing trials at Guantanamo Bay.
The defendants had the designation of prisoner-of-war removed from them so that they were not protected by the Geneva Convention of 1929 which afforded prisoners the right to be inspected by Red Cross personnel who could monitor their levels of nutrition and overall physical condition.
The regime of torture appears to have been implemented in the absence of these safeguards. There was evidence of beatings, kickings, torture and other physical brutality presided over by the US Army’s chief interrogator, William Perl whose tactics for extracting confessions included mock trials, extended periods of solitary confinement, bread and water diets, failure to supply drinking water and burning matches under the fingernails of detainees.
A dentist was brought in to fix broken teeth.
In time, the efforts of Senator Joseph McCarthy would succeed in reopening the case at Senate hearings looking into the allegations of torture, and although the Senate committee upheld the sentences, General Lucius Clay, the US military governor of occupied Germany, referred the case to the Administration of Justice Review Board to study irregularities which arose in legal proceedings.
The death sentences were commuted to life imprisonment and the convicted eventually released.
Although the circumstances of an intensifying Cold War between the former war time allies of Western powers and the Soviet Union may have contributed in some measure to the commutation of sentences, many were of the view that the conduct of the Malmedy Trial could not stand the test if measured according to standard principles of trial law.
The Obama administration’s about turn on re-instituting a military commission system of trial for the aforementioned Guantanamo detainees is a calculated risk given the fact that the Supreme Court had frustrated the Bush administration’s plans on three occasions, ruling that the principle of habeas corpus cannot be suspended in regard to the prisoners, that some protections of the Geneva Convention must extend to prisoners and that only congress can establish such tribunals.
But the history of the highest court’s precedents on the use of military commissions on civilians is contradictory. For instance, it ruled in 1866, that a military commission did not have the jurisdiction to try an Indiana-based lawyer who was accused of propagandizing the Confederate cause.
The ruling referred to the need to try citizens in civilian courts when they are “open and accessible.” On the other hand, President Roosevelt’s commission, set up in regard to the German attempted saboteurs, was upheld by the court in 1942.
The problem of the implementation of military tribunals in the contemporary circumstances of the ‘War on Terror’ encompasses not only the interpretation of American constitutional law and international law, but also the strategy underpinning the prevailing policy of the state.
There is something to the argument proffered by the likes of Keith Allred, a retired naval officer who served as a presiding judge over the first US military commission case since the Nuremberg trials, who asserts that trying Al Qaeda suspects in civilian courts undermines the purpose of the Laws of War and the Geneva Convention since “Trying these men in federal court improperly rewards their abuse of civilian status to engage in hostilities by giving them greater protection than we would give to a prisoner who complied with the laws of war.”
At the same time, it must also be noted that the trial of certain non-combatant figures in a civilian criminal court may not necessarily obviate the chances of the civilian sphere being utilised as an instrument of state vengeance.
Emotions of communal outrage, of wounded national pride and a pervading sense of the need to revenge a perceived wrong may lurk in the mindset of the general populace as the triumphant reaction of large segments of the American people to the assassination of Osama Bin Laden showed.
The post-war trial in Britain of William Joyce, the notorious Nazi radio propagandist Lord Haw Haw, demonstrated the convergence of popular public sentiment and state policy in contriving the judicial murder of an unpopular defendant; this the outcome to be, regardless of any extenuating circumstances or facts absolving the defendant.
Joyce was put on trial for his life for treason because he had given “aid and comfort to the King’s enemies”. He ought to have avoided the hangman’s noose on the legal technicality that he was not a British subject at the time of the relevant broadcasts.
Although he became a naturalised German citizen in 1940, the prosecution claimed that he was still a British citizen for nine months of his broadcasts before he acquired German citizenship. This is disputed because Joyce, who was born in America to Irish parents, fraudulently obtained a British passport sometime during the 1930s.
This argument was overborne by the prosecution's counter-argument that he was effectively still under the protection of the crown by virtue of his physical ownership of a British passport.
Given what is known about the regime of torture in the Guantanamo security regime as well as at the ‘black site’ locations run by the CIA, the use of military commissions in preference to the civilian criminal courts which objectively would be forced to terminate a trial process if held within their jurisdiction, bear the unmistakable hallmark of ‘drumhead’-style justice.
It is not difficult to read between the lines. The likes of al-Nashiri and Sheik Mohammed, who would pose a persistent threat to American national security if released from the civilian system of courts, would have to be kept under permanent detention or surveillance for the duration of a peculiar sort of war which is of indeterminate length; perhaps decades according to the most optimistic predictions.
Those insisting on the correctness of their trial by military tribunals have in mind the ultimate preconceived objective which most military commissions have tended always to have: to secure a guilty verdict and in this case to have both men and others executed.
The goal for them therefore is to put a gloss on things; to give any trial the veneer of due process. It is a view not unlike the one eventually favoured by Winston Churchill who initially was disposed to having the surviving key Nazi figures taken out and shot, but who was persuaded by Franklin Roosevelt that it would be better to put them on trial; a genuine form of trial rather than the propaganda value show trial favoured by Josef Stalin.
This is the crux of the matter: America, a nation predicated on adherence to the rule of law and as one which boasts about its institutions of governance which it seeks to export, will not be in a position to claim that it leads by example where it is seen to subvert the very principles it holds to be at the heart of its foundation.
(c) Adeyinka Makinde (2012)
Adeyinka Makinde lectures in Public Law at a London University.