The Military Commissions

On November 13, 2001 President George W. Bush issued an order establishing military commissions to try prisoners captured in the so-called ‘war on terror’. These commissions were explicitly created outside and beyond the existing American legal system to try those suspected of involvement in, or known to be, involved in ‘terrorist’ activities against the United States. The commissions were authorized to issue sentences up to life imprisonment or death. This was a bold legal move as the United States had not used military commissions since WW II, and even then they were used to try a few people in a war between nations. The new commissions established by the Bush administration applied to any and all people, anywhere in the world, for an indefinite period suspected of aiding, abetting, supporting and committing acts of ‘terrorism’. These commissions were created and established in secret by a small group of administrative officials. This group avoided involving Congress and other executive branch agencies. It also refused to involve or seek the support of the military’s lawyers, the Judge Advocate General (JAG) Corps – members of JAG have been among the most vocal critics of these military commissions. The military commissions were explicitly established to work outside of the law, and allow the administration to indefinitely imprison, torture and render any and all they suspected of ‘terrorism’ or providing ‘material support’ to ‘terrorist’ organisations.

The military commissions suffered from a number of problems; the accused is not presumed to be innocent, had no access to the government’s evidence, could not cross-examine the witnesses, and could not appeal the sentence in a civil court. The trials did not conform to the Geneva Conventions, the customary laws of war, or even the US military law. Perhaps most egregiously, the commissions allow evidence gained under torture, including evidenced gained under cruel, inhuman or degrading treatment, they denied the accused the right to be present during a trial, (though this has been rectified to some degree in a make-over attempt to give the commissions a bit more legitimacy) and lacked all impartiality.

On June 29, 2006, the US Supreme Court, in Hamdan vs. Rumsfeld, declared that military commissions violated the Uniform Code of Military Justice and standing courts-martial rules by not allowing the defendant to be present at the trial, by allowing the use of evidence gained under torture and coercion. Furthermore, the court argued that they violated Common Article 3 of the Geneva Conventions – that all trials be conducted by a ‘regularly constituted court affording all the judicial guarantees recognised as indispensable by civilised peoples’.

The US still uses military commissions to try prisoners caught in the ‘war on terror’, including those being held at Bagram. Despite various attempts to ‘improve’ these commissions – Congress has passed various legislation in this regard including the Military Commission Act of 2006 – they remain deeply flawed and fail to meet the least standard of federal or military courts. Congress introduced several bills to repeal the MCA, but none received enough support to overturn them. Today, despite promises made by the Obama administration, the system remains largely in place. There have been some cosmetic changes to address the blatant unlawful and unjust nature of these commissions, but several flaws that make them illegitimate remain. Commissions can still rely on hearsay evidence, the accused are only provided a ‘personal representative’, who is not a lawyer, but a member of the US military and under the military’s command structure, evidence can still be presented in secret, and kept from the accused. At Bagram the process is entirely under the Enemy Combatant Review Board (ECRP) which is an even more egregiously weak process. However, since we are unable to see anything of what takes place inside Bagram, we can only draw conclusions from the conduct of the US authorities inside Guantanamo.

The military commissions are prone to secrecy, they continue to try as war crimes criminal offenses such as providing material support, still only apply to foreign nations thereby creating a dual-legal system and violate the principles of equal protection under law. Furthermore, with their lower standards for evidence, they are often used to try those against whom the government’s case is weakest. Current trials being carried out carry the burden of prosecuting men who had been severely and repeated tortured into confessing crimes. These cases would, in a civil and federal court, be immediately thrown out because of the inadmissibility of evidence gained under torture and duress.