Arguments Against Military Commissions by Gay Gardner

This remarkable article in today’s New York Times is a reminder that it’s important for us to take advantage of the current hiatus in the military commissions trial of Canadian child soldier Omar Khadr to urge the Obama Administration, between now and the end of September, to abandon military commissions, as recommended in the attached Urgent Action appeal (re-posted here for your convenience).

http://www.nytimes.com/2010/08/28/us/28gitmo.html?emc=eta1

The Times article says the Administration is having misgivings about the negative impression of military commissions that the Khadr case is presenting to the world, as if this is something the Administration had never considered and over which it had no control, rather than the result of a deliberate choice they made.

The following is a list of arguments against military commissions I pulled together, which I hope will be helpful to you:

Arguments Against Military Commissions

• Military commissions are not independent of the military chain of command.
• Military commissions are discriminatory.  The fact that the Administration is unwilling to use them to try U.S. citizens demonstrates that they are neither fair nor necessary.
• The use of military commissions violates Common Article 3 of the Geneva Conventions, which requires anyone suspected of war crimes to be tried in regularly constituted courts “affording all the judicial guarantees recognized as indispensable by civilized peoples.”
• Even with strengthened due process procedures enacted in the Military Commissions Act of 2009, military commissions have lower evidentiary standards than civilian courts, including different rules regarding hearsay, evidence obtained through coercion, and disclosure of evidence to the defendant.
• Military commissions have no special provisions for juveniles as required by the Convention on the Rights of the Child and its Optional Protocol.  The Optional Protocol, which the U.S. has signed, requires that captured child soldiers must be provided “all appropriate assistance for their physical and psychological recovery and their social reintegration.”
• The Obama Administration, like its predecessor, has asserted the right to continue to detain indefinitely any individual tried by a military commission, even if he is acquitted, raising questions about the utility of spending taxpayer money on military commission trials, as well as the fairness of these proceedings.
• The Military Commissions Act allows for trials on charges such as “conspiracy” that were not war crimes at the time they allegedly were committed.  Under the U.S. Constitution, such ex post facto charges are prohibited.
• The rules and procedures of military commissions have changed often with little or no advance notice to lawyers and defendants.
• Using a forum with such weak legitimacy as military commissions distracts attention from the crimes the defendants are charged with.  The commissions will never be perceived as fair by the rest of the world.
• Military commissions will continue to be subject to protracted litigation, thus further lengthening the already egregious delays in bringing accused terrorists to justice.
• Treating terror suspects as warriors rather than criminals plays into their hands.  As Judge Young said to “shoe bomber” Richard Reid, “You are not an enemy combatant.  You are a terrorist.  You are not a soldier in any war.  To give you that reference, to call you a soldier, gives you far too much stature.”
• Military commissions provide terrorists with a propaganda tool.  It was the military commission process, not federal court proceedings, that Khalid Sheikh Mohammed mocked when he was brought before a commission during the last administration.
• Civilian courts are no more subject to grandstanding by defendants than military commissions.  Federal judges have the ability and authority to restrict such behavior.
• Federal civilian courts are perfectly capable of protecting classified information, as provided by the Classified Information Procedures Act.  The report of the committee President Obama established to review the cases of each of the Guantanamo detainees noted that this was not a significant factor in their recommendations about whether and in what forum each detainee should be tried.  Rather, the recommendations were based more on an assessment of the quantity and quality of evidence the government had.