June 22, 2013
Guantanamo Prisoner Al-Nashiri's Case Demonstrates Unfairness of Military Commissions
By Marjorie Cohn
The issue of terrorism has been front and center in the national discourse since 9/11. Guantánamo has become a symbol of US hypocrisy on human rights. Lawyers handling the criminal case of Guantánamo prisoner Abd al-Rahim al-Nashiri argued several pre-trial motions last week. But just as they raised some fascinating legal issues, the hearings revealed the basic unfairness of the military commissions for adjudicating criminal cases. People can be put to death after a trial that affords a reduced level of due process.
Defense motions raised issues of whether the Sixth Amendment's Confrontation Clause applies in military commissions; whether a military commission can legally try defendants for the crimes of conspiracy and terrorism; whether the government has been eavesdropping on confidential attorney-client communications; whether the accused can be excluded from pre-trial sessions in which classified information is discussed; whether the defense is entitled to parity with the prosecution in subpoenaing witnesses; and how much discovery the prosecution must turn over to the defense. Judge James Pohl took the motions under advisement. That means he postponed ruling on them until later.
In 2006, in Hamdan v. Rumsfeld, the Supreme Court struck down the military commissions President Bush established in 2001 because their procedures did not comply with the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions. The Court ruled that members of al-Qaeda are entitled to the protections of Geneva's Common Article 3, which includes being protected from the "passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."
The Hamdan Court also said the commissions must follow procedural rules that basically parallel courts-martial proceedings under the UCMJ. Yet the Military Commissions Act of 2009 (MCA) [sec. 948b] says the UCMJ "does not, by its terms, apply to trial by military commissions except as specifically provided in this chapter." It declares that this chapter is "based upon the procedures for trial by general courts-martial under [the UCMJ], " but it also provides that "[j]udicial construction and application of [the UCMJ], while instructive, is therefore not of its own force binding on military commissions."
It remains to be seen whether the new, improved military commissions will pass constitutional muster if and when they get to the Supreme Court.
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