An essential component to justice, and indeed an integral part of the current US judicial system used for its own citizens (ie everyone other than those suspected of being a terrorist), is a judiciary that is free and independent from the other branches of government. This independence allows for a judicial review that is impartial, and sometimes even critical, of the laws passed by the legislature.
In the US system of government, the legislative branch, in conjunction with the executive branch, makes the laws, and the judicial branch enforces those laws. A system of checks and balances allows for each branch of government to prevent another branch from exercising greater power than it has been given by the constitution. This separation of powers, or lack thereof, is the military commission’s greatest flaw.
The military commission is a creation of the executive branch of the government, specifically designed to perform the function of the judicial branch, but without the essential independence of a true judicial body. The executive branch, through the power of legislation, also set up the rules governing the operation of the military commission. Therefore, the body used to judicially review the cases of the detainees, and the rules set up for that body to follow, were created by the same entity. This not only lacks an independent perspective in the operation of judicial review (necessary to identify laws that violate basic human rights), it also denies the reviewing body the power to condemn the very rules it must abide by.
Among the most criticised rules governing the military commission is the allowance of evidence that was obtained using cruel, inhuman or degrading treatment. If the judge finds that the evidence is "reliable" and if “the interests of justice would best be served by admission of the statement into evidence,” they may allow the evidence to be used by the prosecution against the accused.
Can “the interests of justice” be served by admitting evidence that was obtained by degrading a human being to the point of psychiatric trauma? It is rejected in international law and most domestic legal systems where evidence obtained by coercion or duress must be excluded. The convention against torture specifically states that parties to the Convention shall ensure that evidence obtained by torture won’t be used in trials.
In 2005, the Bush Administration passed the Detainee Treatment Act (DTA). In response to pressure from human rights groups, the DTA prohibits cruel, inhuman or degrading treatment of detainees. It also prevents the use of evidence obtained in this manner from being admitted in a military commission, if the inhuman treatment occurred after 2005. Unfortunately, the vast majority of detainees that will face the military commission have been incarcerated since 2001 or 2002 so all of the evidence obtained before 2005 using cruel or degrading treatment is admissible.
Another unsound principle of the military commission process that draws great censure is the 'label' placed on all suspects as a prerequisite for facing the military commission. Before a detainee faces a military commission, which decides the guilt or innocence of his alleged terrorist acts, he must appear in front of a Combatant Status Review Tribunal (CSRT). The CSRT determines whether the detainee should be considered an “enemy combatant.” Similar to that of a military commission, the CSRT allows evidence that was obtained using cruel, inhuman, or degrading treatment. It also allows hearsay evidence, in which the government is given the benefit of the doubt of the evidence it presents without directly proving its source or validity. Additionally, the detainee does not have any effective legal representation. There is no client attorney confidentiality or other basic representation rights. This prerequisite of a determination as an “enemy combatant” in order for a detainee to face a military commission is essentially a 'guilty' label before he even faces a trial.
Although the US government continues to make claims regarding the fairness of this judicial process, the fact is these detainees face a specialised court, operating under specialszed rules, which allows for great leniency in favor of the prosecution against them. And this entire process was created by the same branch of government that has kept these men incarcerated without trial since 2001.
After reviewing the skewed judicial system facing the detainees of Guantanamo Bay, where the death penalty can be applied, the arguments made by human rights organisations for a fair and independent judicial review seem even more pertinent than ever. Fairness cannot be achieved without an independent judicial review possessing ALL of the due process rights deserving of every human.
Below is a chronology of a military commission involving Salim Hamdan; Osama bin Laden’s alleged former chauffer who is accused of conspiracy and providing material support for terrorism:
13 November 2001 – President Bush issues Military Order authorizing trials by military commission for foreign nationals. 24 November 2001 – Salim Hamdan captured by Northern Alliance in Afghanistan and sold to U.S. forces. He is held in Bagram and Kandahar airbases in Afghanistan. 7 February 2002 – President Bush issues a memorandum asserting that no “war on terror” detainee would qualify as a prisoner of war, and therefore, Article 3 common to the four Geneva Conventions would not apply. June 2002 – Salim Hamdan transferred to Guantanamo. July 2003 – Salim Hamdan made eligible for trial under Military Order. 14 July 2004 – Hamdan charged with “conspiracy.” The Pentagon describes the military commissions under the Military Order as a “tool of justice,” guaranteeing “full and fair” trials for the accused. 8 November 2004 – District Court rules in Hamdan v. Rumsfeld that military commissions are unlawful. 15 July 2005 – U.S. Court of Appeals for District of Columbia (DC) Circuit overturns the District Court’s Hamdan ruling. 30 December 2005 – Detainee Treatment Act (DTA) becomes law. DC Circuit Court of Appeals is given exclusive jurisdiction to “determine the validity of any final decision” handed down by the military commission. 29 June 2006 – U.S. Supreme Court reverses Court of Appeals in Hamdan v. Rumsfeld, ruling that the military commissions violate U.S. military and international law and common Article 3 of the Geneva Conventions applies. 17 October 2006 – Military Commissions Act (MCA) becomes law. 13 December 2006 – District Court dismisses Hamdan’s habeas corpus petition on the grounds that section 7 of the MCA has stripped the federal courts of jurisdiction to consider such appeals. 2 February 2007 – Charges under MCA of “conspiracy” and “providing material support for terrorism” sworn against Hamdan. The charges allege that he acted as Osama bin Laden’s personal driver and bodyguard, that he transported weapons and other supplies for al-Qaida members and associates, and that he received weapons training. 1 May 2007 – Charges referred to military commission for trial. 12 June 2008 – Supreme Court rules in Boumediene v. Bush that section 7 of the MCA is unconstitutional and that the Guantanamo detainees have the constitutional right to habeas corpus. 17 July 2008 – District Court refuses to stop Salim Hamdan’s trial on the basis of the Boumediene ruling, saying that Hamdan can only challenge the constitutionality of the system after his trial. 21 July 2008 – Salim Hamdan’s trial begins.
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