September 11, 2001 : Attack on America
U.S. Military Commissions: Fair Trials and Justice by William H. Taft IV; March 26, 2002


[The author is the Legal Adviser of the U.S. Department of State. He served previously as the General Counsel of the Department of Defense and Deputy Secretary of Defense under President Ronald Reagan and as U.S. Ambassador to NATO under President George Bush.]

Since September 11, the world community has committed itself to bringing those responsible for the attacks on the World Trade Center and the Pentagon to justice. The United Nations Security Council has called upon all States to hold accountable those persons who aided, supported or harbored the perpetrators, organizers or sponsors of those terrible crimes. This is a multilateral battle for accountability and justice as well as a fight for the security of our people and our fundamental values. Like other nations, the United States has been taking steps to bring the 9/11 terrorists and their supporters to justice. Just last week, the Department of Defense issued rules and regulations that will govern the conduct of the military commissions that may be established to try persons accused of violations of the laws of war. Last November, President Bush set out the framework for such judicial bodies based upon their long history and basis under U.S. law. He noted that such commissions would provide the U.S. Government a potentially useful option to bring suspected terrorists to justice. The international community now knows how such tribunals would operate.

In preparing the procedures for the military commissions, the U.S. government has been well aware of various concerns that have been expressed regarding the treatment of persons who may be referred for trial as well as the need to assure that determinations of guilt or innocence are made promptly, after consideration of relevant evidence, and without jeopardizing the personal safety of witnesses, jurors, and others involved in the process.

Over the last fifty years, the U.S. military and Congress have worked strenuously to fashion through the Uniform Code of Military Justice a model judicial system designed to try American military personnel for their alleged crimes. The military justice system today produces just outcomes and provides defendants with all the basic due process protections found in civilian criminal proceedings. It has earned a reputation among observers and practitioners as one of the fairest systems in the world. The Uniform Code itself expressly recognizes that military commissions have jurisdiction over violations of the laws and customs of war, and the United States has consistently used such commissions to try enemy combatants for such violations. As with the evolution of courts-martial procedures, the Pentagon's recently released Military Commission Order represents a significant advance in military commission procedures.

Military commissions have a well-established place in international law and practice. The Third Geneva Convention on the Protection of Prisoners of War, for example, presumes that POWs "shall be tried only by a military court," which has often been a military commission, and authorizes trials in civilian courts in certain instances. Nations as diverse as the Philippines, Australia, China, The Netherlands, France, Poland, Canada, Norway, and the United Kingdom have prosecuted war criminals in military commissions, to name just a few. The United States used military commissions as far back as 1780, during the American Revolutionary War, and again during and after the Mexican-American War, the American Civil War, and World War II. European States made similar use of military commissions in 19th-century conflicts and even more extensively in the 20th century. In fact, the Allies relied heavily upon military commissions to prosecute war criminals following World War II for the reason that their procedures are easily adapted to the special needs of such cases.

The military commission regulations just issued are consistent with this tradition and ensure that the conduct of U.S. military commissions will provide the fundamental protections found in international law. Indeed, in a number of respects the procedures represent improvements on past practice. In preparing the procedures, the Pentagon not only listened carefully but also took into account the constructive advice and concerns raised by other governments and the non-governmental community.

The procedures offer essential guarantees of independence and impartiality and afford the accused the protections and means of defense recognized by international law. They provide, in particular, protections consistent with those set out in the 1949 Geneva Conventions, the customary principles found in Article 75 (Fundamental Guarantees) of Additional Protocol I to the Geneva Conventions, and the International Covenant on Civil and Political Rights. Even though many of these specific provisions may not be legally required under international law, the military commission procedures nevertheless comport with all of them.

For example, the Pentagon's procedures provide: a fair and public hearing, the presumption of innocence, the highest standard of proof beyond a reasonable doubt, the choice of both military and civilian counsel, adequate time and facilities to prepare for trial, the ability to be present at one's own trial (subject only to exceptional national security concerns, although defense counsel could be present), the ability to present a defense (including the right to examine and call witnesses), protection against self-incrimination, a requirement that guilty verdicts be unanimous in capital cases, and automatic review by a higher tribunal to which civilians may be appointed.

As noted, the procedures call for public hearings. By providing for closed proceedings when necessary, the regulations also assure that the accused may be brought to justice without risking the safety or security of victims and witnesses. In this respect, as in others, the regulations are similar to the rules of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, both of which provide that proceedings may be closed to the public on the basis of "public order or morality," the "safety, security or non-disclosure of the identity of a victim or witness," and "the protection of the interests of justice." In addition -- and also consistent with the practice of other international criminal tribunals trying persons charged with war crimes -- the regulations allow for the presentation of evidence in camera where its publication would endanger national security (e.g., classified information and intelligence sources). In all cases, however, such information will be made known to the accused's qualified defense counsel, who will have an opportunity to examine and challenge witnesses and the evidence.

Taken together, the recently published regulations will result in efficient and fair trials. Individual rights of those charged with crimes will be respected, while assuring that those responsible for killing civilians and other acts of terrorism will be convicted.

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