Final Military Commission Rules Fail to Include Fair Trial Guarantees

The Defense Department issued eight “Military Commission Instructions” on April 30, 2003.¹ These instructions set out the final definitions of crimes and operating rules for the military commission trials planned for suspected terrorists.

In May 2003, the Defense Department announced the appointment of top officials who will administer the military commissions, putting the final pieces in place for the Administration to begin trials under President Bush's November 2001 Military Order.

On July 3, 2003, the Defense Department announced the formal designation as eligible for trial by military commission of six current detainees at Guantanamo, including UK citizens MoAzzam Begg and Feroz Abassi, and Australian citizen David Hicks. Trials are expected in the near future.

The November 2001 Military Order that authorized trials outside the regular federal and military courts triggered widespread controversy. The Lawyers Committee for Human Rights, along with numerous commentators and other groups, expressed great concern that the stripped-down trials would fall short of minimum due process protections required by U.S. and international law.

A second “military commission order,” in March 2002, mollified many critics. These legal analysts were heartened by some significant improvements over the original concept, including guarantees of the presumption of innocence; a requirement that guilt be proven beyond a reasonable doubt; and provision for the right to counsel and the right against self-incrimination.

Now the new rules provide the fullest picture yet of what the military commission trials will be like, however, and the critics’ concerns about fundamental fairness appear to have been well-founded. While Administration officials have offered assurances that military commission trials will be open to the public -- that the judgments issued by them will be independent, that trials will be limited to those who commit war crimes, and that defendants will have access to counsel of their choice -- major problems still remain. These include:

• Lack of Independence. The military commission structure will be an entirely closed system, under complete control of the President, with no appeal to any civilian court. Military officials, all within the same chain of military command, have created the rules governing the commissions, defined the crimes they will try, and will staff the panels sitting in judgment (including review panels). It is precisely this kind of “accumulation of all powers, legislative, executive, and judiciary in the same hands” that James Madison pronounced “the very definition of tyranny.”
  
  
• Over-expansive Jurisdiction. Despite White House assurances that military commissions would be used to try only “enemy war criminals” for “offenses against the international laws of war,” the chargeable offenses expand military jurisdiction into areas never before considered subject to military law or military courts. This broad jurisdictional reach is achieved by stretching the notion of “armed conflict” to include isolated incidents, and even unsuccessful attempts, providing a purported “law of war” nexus for crimes, such as “terrorism” or “hijacking,” that would otherwise fall outside military jurisdiction and within the ordinary purview of the federal courts.
  
  
• Constraints on Right to Counsel of One’s Choice. Military commission defendants will be represented by military defense lawyers assigned to them -- even if they don’t want one. While, as a legal matter, defendants will also be entitled to have a civilian lawyer, there will be strong personal and professional disincentives for civilians to serve, and severe restraints on the effectiveness of such counsel, who will have to work in cooperation with the assigned lawyer. Civilian lawyers desiring to represent military commission defendants will have to be U.S. citizens, eligible for access to information classified “SECRET,” and without a record of official sanction for “relevant misconduct,” as determined by the military Chief Defense Counsel (with no opportunity for appeal of adverse determinations).
  
  
• Economic Hardship for Civilian Attorneys. Unless a defendant or his family or friends can provide financing, civilian defense lawyers will have to pay for their own security clearance investigations and all personal and case-related expenses. This consideration alone will make it extremely unlikely that competent lawyers will choose - or even be financially able - to volunteer for work which they might otherwise have considered a significant and professionally rewarding pro bono experience.
  
  
• Professional and Personal Hardship for Civilian Attorneys. Civilian lawyers must agree not to leave the site of the proceedings without Defense Department approval during the military commission trials. They will be required entirely to subordinate the rest of their professional and personal lives to the proceedings and will almost inevitably have to forego all other employment for the duration. Civilian lawyers may not “discuss or otherwise communicate or share documents or information about the case with anyone” except Defense Team personnel provided by the Defense Department, potential witnesses, and “other individuals with particularized knowledge that may assist in discovering relevant evidence in the case.” Accordingly, defense lawyers will be denied the right to consult with any outside legal, academic, forensic or other experts.² Civilian lawyers may be denied access to any information - including potential exculpatory evidence - to the extent the prosecution determines “necessary to protect the [undefined] interests of the United States.” Assigned military counsel must be provided any secret information to be used at trial; but even military lawyers may be denied access to potential exculpatory evidence not used at trial.
  
  
• Lack of Attorney-Client Confidentiality. The conditions imposed upon attorney-client communications can be expected to place a serious chill over the relationship between a defendant and his lawyer. Communications may (without notice) be monitored by the Defense Department; and lawyers will be subject to penal sanction if, for instance, they fail to reveal information they “reasonably believe [based on undefined standards] necessary to prevent... significant impairment of national security.”
  
  
• Limits on Public and Media Access. Though the Pentagon’s newly appointed Chief Defense Counsel has promised to push for trials to be as open as possible, the government has broad discretion to close proceedings to protect what it determines to be “national security interests”; and while the Secretary of Defense, the DOD General Counsel and other officials familiar with the prosecution will be free to provide the media the government’s interpretation of the proceedings, media access to the defense perspective will be strictly limited.
  

¹On July 1, 2003, the Defense Department issued (without notice) a slightly revised version of Military Commission Instruction No. 5. This revision (which retains the “April 30, 2003” date) somewhat loosens restrictions on civilian defense counsel.
² Under the original issued version of Military Instruction No. 5, civilian defense counsel were prohibited from talking about the case even with potential witnesses or others who could assist in finding evidence; and they were required to perform all case preparations at the site of the trial.