- The Washington Times - Monday, July 10, 2006

Congress should reject President Bush’s plea to authorize military commissions to try noncitizen illegal combatants for war crimes when they are already immobilized indefinitely at Guantanamo Bay.

In Hamdan v. Rumsfeld (June 29, 2006), the U.S. Supreme Court held the president’s order creating such commissions in the aftermath of September 11, 2001, violated both the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions because of structural and procedural deficiencies. But as Justice Stephen Breyer emphasized in a concurring opinion, nothing in Hamdan “prevents the president from returning to Congress to seek the authority he believes necessary [for military commissions].”

Hamdan itself combined with testimony of then Assistant Attorney General (and now Secretary for Homeland Security) Michael Chertoff disprove the need for military commissions bereft of core procedural safeguards to try war crimes, such as a prohibition on secret or unsworn evidence. Customary courts-martial following the UCMJ are up to the task.

Neither speedy punishment nor national security justifies military commissions, as the leisurely proceedings against Hamdan corroborate. In November 2001, during hostilities between the United States and the Taliban, Salim Hamdan was captured by militia forces and turned over to the U.S. military. In June 2002, he was transported to Guantanamo Bay for indefinite detention as an enemy combatant, a status later confirmed by a Combatant Status Review Tribunal. Hamdan has never questioned the government’s power to detain him for the duration of active hostilities. Even if acquitted of war crimes, he would not go free.

Over a year after arriving at Guantanamo, President Bush identified Hamdan as eligible for trial by military commission for then-unspecified crimes. After another year elapsed, Hamdan was charged with one count of conspiring with al Qaeda members to commit murder and terrorism. In furtherance of the conspiracy, Hamdan allegedly acted as Osama bin Laden’s body guard and driver; transported weapons for al Qaeda; drove bin Laden to terrorist training camps; and, received weapons training there.

A military commission did not convene on a battlefield to try Hamdan for war crimes based on fresh evidence. It convened years after the alleged wrongdoing and distant from any war zone. Moreover, a trial of Hamdan pursuant to the UCMJ in a Guantanamo facility would not create the safety risks to a surrounding community as would a trial in a civilian courtroom. In testimony before the Senate Judiciary Committee on Nov. 28, 2001, then Assistant Attorney General Chertoff hypothesized but one example of a safety need for a military commission that bears no resemblance to Hamdan’s situation: “If it were to turn out that we apprehended 50 al Qaeda terrorists in the field in Afghanistan, the president might well wonder whether if it made sense from the standpoint of our national security to bring those people back to the United States, put them in a courtroom in New York or Washington or in Alexandria and try them. I think as we sit here now there is still a conflict going on in a prisoner-of-war camp in Afghanistan, where some of the people who have been apprehended apparently seized the camp and are now trying to fight with the Northern Alliance. So plainly that is an instance in which the president could well determine that while we have jurisdiction to bring these people back and try them domestically, it makes no sense to do so when we can also try them for violation of the laws of war under the well-accepted principle of military commissions.”

Mr. Chertoff added, however, that “our [regular] legal system is terrific and can handle these [terrorism] cases,” and, “that the history of this government in prosecuting terrorists in domestic courts has been one of unmitigated success and one in which the judges have done a superb job of managing the courtroom and not compromising our concerns about security and our concerns about classified information.”

President Bush’s military commissions should continue to be rejected by Congress because they gratuitously create unreasonable risks of erroneous convictions without advancing the safety of the American people. If the president has his way, the accused and his civilian counsel would be excluded from, and precluded from learning what evidence was presented during, any part of the proceedings the presiding officer closes. Grounds for closure would “include the protection of information classified or classifiable; … information protected by law or rule from unauthorized disclosure; the physical safety of participants in commission proceedings, including prospective witnesses; intelligence and law enforcement sources, methods, or activities; and other national security interests.” Further, unsworn and coerced testimony would be admissible, in addition to hearsay.

In contrast, trial by courts-martial under the UCMJ would prohibit secret evidence and require sworn testimony. The reliability of verdicts compared with military commissions would be sharply advanced. And the government invariably wins when justice is done.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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