Doing justice during wartime

Policy Review, Feb/Mar 2002 by Sofaer, Abraham D, Williams, Paul R

The military commission is able to avoid the shortcomings of the conventional judicial system because it is specifically designed to respond to situations in which the United States finds itself, during or as a result of a military engagement, in physical custody of non-U.S. citizens believed to be members of terrorist networks who have committed terror acts against the United States. The military commission would also be useful in dealing with individuals associated with institutions or governments, such as leading members of the former Taliban government, who aided and abetted those committing or planning terrorist acts against the United States and its allies.

Military commissions are a flexible tool on which the United States can rely to ascertain with relative informality which defendants are in fact responsible for criminal acts and which are not. This flexibility is an important, practical necessity; for example, in addition to the nearly 500 suspects in American custody by January 2002, Afghan forces were holding nearly 3,000 non-Afghan prisoners who may have had some connection to al Qaeda or may have been trained in terrorism. The military commissions also offer an opportunity - not possible in the domestic context - to create mixed tribunals involving civilian or military judges from countries such as Afghanistan and Pakistan, which currently exercise custody over the detainees, or from countries such as Saudi Arabia and Kuwait, whose citizens are among the detainees.

Contrary to some contentions, the military commissions can provide a full and fair trial while also protecting sensitive intelligence and other information crucial to further efforts to prevent and deter acts of terrorism and war crimes. The Department of Defense must (and we believe it will) ensure that the military commissions comply with the obligation in the Military Order to provide for a full and fair trial, and to ensure that the purpose of the commissions remains to ascertain the guilt or innocence of those accused of war crimes and terrorism. Given that all of the suspects to be tried by military commission will be foreign nationals, it is appropriate for the United States to look to international standards of justice in formulating procedures. Various sets of international standards exist, but the most practical are those used by the International Criminal Tribunal for Yugoslavia (ICTY). According to the statute and rules of evidence and procedure for the tribunal - formulated with the participation and approval of many nations and the entire U.N. Security Council - all defendants are entitled to an expeditious, fair, and public trial, the presumption of innocence, the right to defense counsel of their choosing or to have legal assistance provided, the right to examine evidence and witnesses, and the right not to be compelled to testify against oneself or to confess guilt.

International standards of justice, however, are not identical to those found in the U.S. Constitution or in the Federal Rules of Criminal Procedure. In fact, a number of constitutional protections applicable in U.S. criminal cases have been considered unnecessary or undesirable by the international community or have been significantly modified when applied in the international context for the purposes of ascertaining the guilt or innocence of those charged with war crimes. International standards do not bar hearsay, but rather permit the introduction of any relevant evidence which the court deems to have probative value, and there are no Fourth Amendment-style search and seizure restrictions. Trial by jury is not required. Under certain circumstances, witnesses against the accused may testify anonymously (using voice and image-altering technology) or submit their testimony in writing - thus significantly limiting the defendant's ability to cross-examine witnesses effectively. The prosecution may appeal acquittals (during which time the defendants usually remain in custody) and may seek to retry acquitted defendants if new information becomes available which pertains to guilt - thus exposing such defendants to double jeopardy by U.S. standards. A defendant may even be subject to a form of mini-trial in absentia when the prosecutor, unable to secure his presence, presents the evidence against the defendant in a public hearing for the purpose of reconfirming the indictment.