The Military Tribunals initiated in 2002 have triggered criticism regarding their violation of several established procedures. The current administration was inclined on the suspension of the proceedings, but instead re-initiated them, introducing several new complications. Currently, the Tribunals violate several human rights, allow for the undue process, and accept the questionable practices of treating the evidence.
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The first major violation deals with the rights of the defendant related to the evidence. According to the currently established procedure of most of the states, the accused has the right to gain access to all of the evidence at any time in the process (“Texas Young Lawyers Association and State Bar of Texas” 4). The military tribunals override this right. For instance, during the trials of Ghassan Abdullah al Sharbi, a Saudi accused of war crimes, the prosecution claimed to possess the evidence that was not accessible to the public or the defendant.
The reason given for this restriction was the “sensitivity” of the information which, once made available, could potentially compromise national security (Flynn par. 4). While this may sound plausible given the character of the information the military cases deal with and the matters at stake, it also means that the defense has no means of properly defending themselves. While this violation can not be characterized as unconstitutional, as the Constitution does not explicitly require the disclosure, the federal system and most of the state statutes specify the rule.
However, another highly controversial topic regarding the evidence used in the Tribunals can be deemed unconstitutional. According to the Fourth Amendment, the evidence can not be obtained as a result of the unreasonable search or seizure (Justia par. 4). The Fifth Amendment also specifies the right to remain silent during interrogation, protecting the defendant from self-incrimination. Both amendments effectively protect the accused from coercive interrogation process. Any evidence or confession that falls under suspicion of being obtained with violation of these rights does not have weight in legal proceedings. This, however, is not the case during Military Tribunals.
The case of Omar Khadr features several prominent violations of the Fourth and Fifth Amendments. There is strong evidence backed by Khadr’s statement that his testimonies were extracted under torture and abuse. The interrogations also were conducted immediately after his imprisonment and did not take into account the life-threatening wounds he sustained only several days prior. One of the interrogators also testified of using the “fear up” technique by telling Omar stories of the previous prisoners in similar situations being violently raped and murdered (Ridgeway and Casella par. 5).
The latter also comes in conflict with the right to due process guaranteed by the Fourteenth Amendment (Justia par. 8). Despite being obtained in violation of at least three human rights, the evidence against Omar Khadr was considered valid in court (Ridgeway and Casella par. 2).
The Military Tribunals also limit the defendant’s options of using the attorney on the same grounds they limit the disclosure of evidence. The Trial Guide for Military Commissions lists the eligibility for a Secret clearance among the range of requirements for a lawyer that may represent the defendant in court (4). This effectively denies the accused the free choice of attorneys and thus violates the right to counsel guaranteed by the Sixth Amendment (Justia par. 6). While arguably not a direct violation, it still severely limits the freedom of choice.
The third limitation based on the sensitivity of the information involved that disrupts the established proceedings is the possibility of the limited access. Once the presiding officer or the appointed authority decides the discretion is needed to avoid the disclosure of classified information or to protect the physical safety of the participants, he or she has the right to close the proceedings (RCFP par. 5). While the concern is justified, it affects the Freedom of Information and violates the First Amendment.
The Tribunals permit the conviction of the accused after the agreement of the two-thirds of the jury. In the case of Omar Khadr, only seven jury members were required to agree upon the decision, a condition which is unacceptable in the civilian court (Ridgeway and Casella par. 7).
The violations of the due process were further aggravated in 2011 with authorizing the creation of the periodic review boards. These boards were meant to deal with the prisoners of Guantanamo Bay who were prosecuted by the dedicated military commissions or the Federal Court. However, in reality, the prisoners eligible for trial by PRB are numerous (116 men were reported in 2015) (“A Rebuke to Military Tribunals” par. 7) and, more importantly, the process turned out to be far slower than predicted.
At the same time, the executive order authorizing the creation of the boards does not specify the time frame of the detention, virtually allowing the process to be stretched indefinitely. In fact, some of the prisoners are held in the facility since its opening 14 years ago. Such conditions are clearly violating the due process and are thus unconstitutional.
Finally, the biggest issue with the Military Tribunals is the accusations of conspiracy. Many of the prisoners of Guantanamo Bay faced this charge, which is not considered valid under either the Judicial Branch of the U.S. Government or the Uniform Code of Military Justice. For instance, al Sharbi was charged with conspiracy to commit murder by an unprivileged belligerent (Flynn par. 9). Under closer inspection, it becomes evident that the charge is not an accusation of murder, or even of the murder attempt.
Instead, al Sharbi was basically accused of considering a murder of the enemy combatants. While such charges have taken place at some point in the American history, specifically during World War II, they are currently unacceptable under other conditions and have triggered counteractions by lawyers, including the chief prosecutor of the military commissions General Mark S. Martins (Savage par. 2). Nevertheless, the charges of conspiracy have not been dropped.
The military commission set up to prosecute aliens as a part of the Military Tribunals is also questionable in terms of legal practices. The commission inevitably violates the bilateral treaties that safeguard the equality of treatment, and may be viewed as discriminating on the basis of national origin. Besides, it is in direct conflict with several points of International Criminal Court, such as the requirement for the U.S. Military Commission members to be judges proficient in criminal law, the possibility of in-camera proceedings, and the acceptance of the indirect evidence in court. However, the ICC procedures are not officially recognized in U.S. and thus have no formal power.
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In conclusion, the Military Trials in their current form violate several established criminal justice procedures, such as the choice of attorney, the admission of evidence, and the availability of information, both to the public and to the defendant, among others. Besides, they present a range of complications resulting from disparities with the international criminal court laws and open the possibility for the unethical practices that may potentially compromise the legal proceedings.
A Rebuke to Military Tribunals, 2015. Web.
Flynn, Sean. The Defense Will Not Rest, 2007. Web.
Justia. Overview of Criminal Procedure, n.d. Web.
RCFP. Federal Legislative Update, 2004. Web.
Ridgeway, James and Jean Casella. Obama’s First Military Tribunal Tries Child Soldier Tortured at Bagram and Gitmo, 2010. Web.
Savage, Charlie. Who Decides the Laws of War?, 2013. Web.
Trial Guide for Military Commissions, 2010. Web.