The US Military Commissions set up to try alleged perpetrators of the September 11 attacks have sparked an international outcry


Legislation under which six men are to be tried in Guantanamo Bay for the terrorist murders of September 11, 2001 ‘undermines the rule of law’, according to 34 law societies and bar associations.



They point out that the Military Commissions Act, passed by the US in 2006, applies only to non-US citizens. It applies retroactively, criminalising some actions for the first time. Coerced statements are permitted, the law groups add. And the act denies defence lawyers access to evidence on grounds of national security.



However, the act also provides ‘substantial protections’, the Pentagon responds. ‘Those protections start with a presumption of innocence and a requirement for proof beyond reasonable doubt.’ Defendants may instruct their own civilian defence counsel, provided they are US citizens. No adverse inferences may be drawn if the accused chooses not to testify. Defendants can call witnesses and ‘examine every form of evidence that goes to the military panel’.



And look at the rights of appeal, adds Brig Gen Thomas Hartmann, legal adviser to the convening authority for military commissions. ‘Defendants who are found guilty can appeal to the Court of Military Commission Review and then to the US civilian appellate courts, including the US Supreme Court.’



But that, of course, is the problem. If you take the view that we are fighting a war and that terrorist suspects are the enemy, you may persuade yourself that the need for firm and fast justice is enough to justify trying them before a special court.



And yet a speedy resolution is precisely what the US has failed to achieve more than six years after the attacks that killed nearly 3,000 people. We are now only at the very beginning of a process that could take defendants to the highest US court, perhaps more than once. Unless the next US President introduces changes, I suspect the legal process will be far from over by the time we reach the tenth anniversary of 9/11.



Military commissions are criminal courts run by the US armed forces, distinct from civilian courts and courts martial. In the past, these commissions have been used to dispense battlefield justice, trying captured combatants for violations of the laws of war. They were last used in World War II.



President Bush attempted to revive military commissions in November 2001. But the Supreme Court decided in June 2006 that his commissions lacked congressional authority and did not comply with the Geneva Conventions. As a result, the Military Commissions Act of 2006 was rushed through Congress.



This permits commissions to be convened by the US Defence Secretary, Robert Gates. He in turn has delegated this power to Susan Crawford, a civilian lawyer who served for 15 years as a judge on the armed forces appeal court.



As convening authority, Crawford will decide which charges, if any, should go to trial. In that event, she will appoint serving military officers as members of the commission – the equivalent of a jury, but chosen for their qualifications rather than at random.



If the defendants are to face the death penalty – as prosecutors have requested – then at least 12 commission members will be required. They would then have to be unanimous on verdict and sentence; otherwise, a two-thirds majority is sufficient, or three-quarters for a sentence of more than ten years. Cruel and unusual punishments, such as branding are specifically banned.



Crawford must also appoint a chief judge – who, in turn, appoints a military judge for each case she refers to trial. After any conviction and sentence, the convening authority may reduce or quash a sentence or even the conviction. Any guilty verdict must be referred to a review court of appellate military judges. Prosecutors may also bring interlocutory appeals on points of law to this review court and beyond.



The US announced last month that six men currently held at Guantanamo Bay would be charged under the act with murder and war crimes. They include Khalid Sheikh Mohammed, alleged mastermind of the 9/11 attacks.



These defendants could, of course, be tried before courts martial or civilian courts. But the US authorities believe they are more likely to secure convictions before military commissions. That is because prosecutors may rely on evidence obtained through what the campaign group Human Rights Watch describes as ‘abusive’ interrogation techniques.



The US Centre for Constitutional Rights, which represents one of the defendants, calls this evidence ‘utterly unreliable’ and ‘tainted by the stench of torture’. Khalid Sheikh Mohammed was subjected by CIA interrogators to the near-drowning technique known as waterboarding.



The US has not only devised a new and wholly untested legal regime to try these men – despite Gen Hartmann’s assertion that military commissions have been ‘a well proven method for prosecuting war crimes in the US for over 200 years’. The possibility of death sentences will offer further opportunities for challenges and appeals.



Compare our own experience. The terrorist attacks on London in July 2005 were on a much smaller scale of course. But those responsible for the attempted bombings on July 21 were tried before the ordinary courts and convicted within two years.



If I have misgivings about these US military commissions, it is not because I don’t want to see those responsible for the September 11 attacks tried, convicted and punished. It is because I do.



joshua@rozenberg.net