Military Commissions, So Far

By JOANNE MARINER


Wednesday, Aug. 20, 2008

"We will continue to bring the world's most dangerous terrorists to justice," President George Bush said in 2006, explaining why Congress needed to pass a bill to allow detained terrorist suspects to be prosecuted in military commissions. That same month, the Republican-controlled Congress voted in favor of the legislation that the Administration wanted, and early the following year, the first detainees were charged.

To date, the commissions have prosecuted only two people: a driver and a former kangaroo-skinner. Both were clearly not dangerous terrorists, at least in the view of the people charged with deciding their fates, and both received light sentences.

The case of Salim Hamdan, Osama bin Laden's driver, is the first to have made it to trial; the other prosecution ended in a plea bargain. But the Hamdan trial, which ended this month, was at best a dress rehearsal for more consequential cases to come. It gave the government a chance to test out, in relatively low-stakes proceedings, some of the substantive and procedural arguments that it will rely on in future cases.

To date, the US government has announced charges against 19 other men, including seven cases in which prosecutors are seeking the death penalty. While a number of these cases involve minor defendants like Hamdan, the seven death penalty prosecutions do not.

Whether the seven defendants facing capital charges remain before military commissions, or end up being prosecuted in federal court, their trials will be closely watched and critically scrutinized. The trial of the alleged perpetrators of the September 11 attacks is, above all, the case by which the country's post-9/11 system of justice will be judged. If that trial is bungled-if it is seen as a sham-the whole of U.S. counterterrorism efforts will be badly damaged.

The Hamdan Trial

The two-and-a-half week trial of Salim Hamdan ended in a guilty verdict in early August. The defendant was convicted of five counts of providing "material support for terrorism" but was acquitted of arguably more serious charges of conspiracy. He was sentenced to five-and-a-half years of incarceration, which, because of time served, means that his sentence will expire at the end of the year.

Although military prosecutors appeared outraged at the lenience of the sentence, the results should be understood, from a more strategic perspective, as a boon to the Administration. The direct stakes for the government were low; what was far more important was for the judgment to enhance the credibility of the military commissions themselves.

While Hamdan was not acquitted, the fact that the commission found him not guilty on some charges, and gave him a low sentence on others, gave ammunition to those who claim that the commissions are not kangaroo courts. "We're pleased that Salim Hamdan received a fair trial," said a White House statement issued in the wake of the verdict, summarizing such views.

But serious flaws in the proceedings were still apparent, flaws whose importance will be magnified in later, more high-stakes trials. Notably, the military commission's lax hearsay rules allowed government prosecutors to introduce into evidence inflammatory and prejudicial material that had little or no connection to the defendant.

In addition, Hamdan's defense team received hundreds of pages of relevant documents-including information about reportedly abusive interrogations-only days before the trial began. Other documents trickled in after the trial was under way, making it near-impossible for the defense to conduct follow-up investigations.

A key question-one that will most certainly crop up in future trials-involved evidence obtained under coercion. Although the military commissions judge excluded certain of the statements that Hamdan had made in Afghanistan, statements that Hamdan made at Guantanamo were admitted despite reports that he had been subject to sexual harassment, extensive sleep deprivation, and other abuse. Worse, the commission ruling that allowed these statements into evidence was so heavily redacted that its logic and reasoning remained hidden.

Next on the Military Commissions Agenda

Only one more trial-that of Omar Khadr-is scheduled to take place before the November 4 presidential elections. Khadr, a 21-year-old Canadian, was just 15 when he was captured and seriously injured in a firefight in Afghanistan on July 27, 2002.

The US has accused Khadr of throwing the grenade that killed US Army Sergeant First Class Christopher Speer and injured two others. He is charged with murder, attempted murder, conspiracy, providing material support for terrorism, and spying. Although Khadr was a juvenile at the time of his capture, the United States has refused to acknowledge his status as a minor, or to apply universally recognized standards of juvenile justice in his case.

Khadr's case is currently scheduled to go to trial on October 8. A few other cases-including those of Mohammed Jawad (who was only 17 years old when he was arrested), Ahmed Mohammed Ahmed al-Darbi, Mohammed Kamin, and Ali Hamza Ahmad Suliman al-Bahlul-have also made forward progress. It is possible that one or more of these cases may go to trial by next January.

The Big Cases

The most serious and high-stakes cases that are pending involve the five accused 9/11 defendants-Khalid Sheikh Mohammed, Ramzi bin al-Shibh, Walid bin 'Attash, Ali Abdul Aziz Ali and Mustafa al-Hawsawi-who are being tried together, and terrorist suspects Ahmed Ghailani and Abd al-Rahim al-Nashiri. The latter two defendants are accused of involvement in the 1998 bombing of the U.S. Embassy in Dar es Salaam, and the 2000 bombing of USS Cole, respectively.

The defendants in these cases face not only the prospect of unfair trials, but also the prospect of the death penalty after unfair verdicts. By moving their cases to federal court, the next president could avoid this outcome.


Joanne Mariner is a human rights attorney. Her previous columns on the detainee cases and the "war on terrorism" are available in FindLaw's archive.



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