Inconvenient News,
       by smintheus

Sunday, January 21, 2007

  Just how fair are the new Pentagon rules for Military Commissions?

The administration and Pentagon have been assuring us, falsely, for five years that all the detainees held under appalling conditions at Guantanamo are "terrorists" and "the worst of the worst", and that they all were picked up on the battlefield. For the latest in outright lies, listen (if you can stand it) to the opening statement by State Dept. official John Bellinger on the Diane Rehm Show of Jan. 18.

Yet notoriously, Bush has failed to put any of these men on trial. Under pressure from the Supreme Court's ruling in the Hamdan case, last October Congress passed the almost certainly unconstitutional Military Commissions Act in order to "facilitate bringing to justice terrorists and other unlawful enemy combatants through full and fair trials by military commissions". On Jan. 18, the Pentagon released its manual of rules to implement military commissions.

So, will these trials—if they ever occur—be fair? A pretty important question, which until now has received fairly cursory treatment for the most part.

A few journalists have weighed in last Thursday, highlighting some of the most glaring objections to this new manual of rules—particularly the fact that 'coerced' testimony and hearsay evidence may both be introduced.

Democrats said they were concerned that the manual - based on a law passed last year in the Republican-run Congress - tramples on basic legal rights that should be afforded to military prisoners. This, they say, puts U.S. troops at risk of mistreatment if captured.

Sen. Christopher Dodd, D-Conn., said he is working alongside Democratic Sens. Patrick Leahy of Vermont and Russ Feingold of Wisconsin on a bill addressing flaws in the manual "that are impediments to the effective and credible prosecution of suspected terrorists."...

Under the bill signed into law last fall, only detainees selected for trial by the military are able to confront charges against them. This leaves a vast majority of the thousands of military detainees in custody in Iraq and elsewhere without a chance to plead their case.

Yet so far, the news media have not provided detailed analysis of the manual's contents. There's been no follow-up reporting. The glowing news release from the Pentagon, though not entirely inaccurate, avoids mentioning any criticism of the commissions whatever. And bloggers have been pretty much silent, though this is a subject where they ought to be able to contribute a good deal simply by vetting the manual.

So, I've tried to remedy that gap by working through the Pentagon Manual for Military Commissions section by section. In what follows, I highlight the areas of concern that arise in Part II of the Manual ("Rules for Military Commissions"). They are arranged topically.

The Manual's rules largely follow standard procedures in military trials generally, so I have not unduly stressed the obvious qualities of the military court system (however unfair). But there is no reason I can see why men who were not captured in battle (most of those detaineed at Guantanamo were sold to US forces by kidnappers) should be tried by a military court at all. Therefore I've adopted the perspective of the defendant, or defense counsel, who would rightly believe that the accused should be tried in civil court. The question I posed as I examined the rules was this: Does this make for an unfair trial, given the normal expectations of fairness in civil court proceedings?

In a subsequent post, I'll comment on Part III of the Manual ("Military Commission Rules of Evidence"). This is the section that specifies, among other things, the highly controversial rules that permit testimony acquired through 'coercion' but NOT (curiously enough) through 'torture'.


How fair will the military commission trials be under the Pentagon rules?

The officers who will constitute the commissions

The new Pentagon Manual prohibits military personnel from using coercion or reprisals against commission officers for the way they rule in a trial, but it provides no penalties or means of recourse in case of coercion or reprisal. (II Rule 104) This is partially restated at (II Rule 502 c 4), but again without any mention of recourse or penalties in the event of reprisal. (I'd venture that no officer who's even half-awake is likely to dismiss so easily the prospect of being passed over for promotion if he votes the wrong way on a high-profile commission. Who will forget the Navy's treatment of Lt. Cmdr. Charles Swift, for example?)

In constituting a military commission, the defense is permitted only a single peremptory challenge to members appointed to it. (II Rule 912 g) "A member shall be excused for cause [from serving on a military commission] whenever it appears that the member...Should not sit as a member in the interest of having the military commission free from substantial doubt as to legality, fairness, and impartiality." (II Rule 912 f 1) And since many well-informed observers have grave doubts about the "fairness" of these military commissions, if the point is meant to be taken seriously then this rule ought to mean that no officers whatever should serve on one of these, in the interest of not convening any military commissions to which substantial doubt attaches about their fairness. But I digress.


Under the Military Commissions Act, if a person put on trial has not already been found to be an "unlawful enemy combatant" under a Combat Status Review Tribunal, then he has no right of appeal to federal court to challenge the jurisdiction of the military commission. All he can do is file a motion to dismiss. (II Rule 202)

Military not responsibile for investigating the facts and the law

A trial may proceed even if there has been no report of an investigation into the allegations against the accused. (II Rule 406 b 2)

Before a trial proceeds, a legal advisor under the "convening authority" (SecDef or subordinate) must first assess the allegations and make a personal recommendation about whether action should be taken. However "the advice need not set forth the underlying analysis or rationale for its conclusions." Defects in pretrial advice "are not jurisdictional". All that is required is that information in it should be "accurate" and not "so incomplete as to be misleading". In other words, if the advice given proves to be based on half-truths, suspicions unsupported by evidence, faulty reasoning, or the misapplication of the law, so what? (II Rule 406 Discussion)

After a military commission rules, but before sentence is enacted, another legal advisor must examine the record and make recommendations. However, as before, the legal advisor does not need to actually investigate whether the commission's actions were legally correct. "The legal advisor is not required to examine the record for legal errors." And if defense counsel raises any complaints about legal error, they may be rejected by the legal advisor without supplying a rationale. (II Rule 1106 c 4)

Submitting, manipulating, withdrawing charges

Charges may be submitted (in writing) by anyone who "has personal knowledge of or has reason to believe, the matters set forth therein; and that they are true in fact to the best of that person’s knowledge and belief." This means that hearsay evidence is permitted, as long as the accuser is willing to state that he/she believes the accusation. "The accuser’s belief may be based upon reports of others in whole or in part." (II Rule 307) In fact, the entire set of charges "may be based on hearsay in whole or in part." (II Rule 601 d)

In the charges submitted, any time the prosecution neglects to cite or "errs" in citing the M.C.A., or federal law, or the law of war, it will not be grounds for dismissing the charges or reversing the penalties as long as it did not "prejudicially mislead the accused." How the accused (presumably ignorant of the law) is supposed to prove that he was misled, and was misled with prejudice, is not specified. In other words, the door is wide open to prosecutorial misdirection and gross incompetence. (II Rule 307)

Charges may be withdrawn after a case goes to trial, then re-submitted later to another military commission. (II Rule 604)

Even if all charges against an accused are dismissed, he need not necessarily be told of that fact ("ordinarily [he] should be informed"). {Interestingly, however, the manual also states that "a charge should be dismissed when it fails to state an offense...[or] is unsupported by available evidence"; the Seton Hall study of military tribunals found that 55% of the detainees had not even a single accusation leveled against them.} (II Rule 401)

Defendant's right to mount an effective defense

The charges are to be told to the accused "as soon as practicable" in English, "and, if appropriate, in another language that the accused understands." There is no rule requiring a translation, nor specifying that it must be an accurate and complete translation. (II Rule 308)

The court is permitted but not required to have interpreters on hand for the defendant. (II Rule 501 d) The defendant may have to pay for his own interpreter. (II Rule 502 e 3)

The military court must agree before a defendant is permitted to be represented by his civilian counsel. (II Rule 501 a 3) See also (II Rule 502 d 1). Only US citizens are permitted. (II Rule 502 d 3) The court may replace the defense counsel without cause, as long as it does so "before an attorney-client relationship has been formed". (II Rule 505 d 2) All that aside, however, we're told that the defendant has the right to be represented by a civilian counsel. (II Rule 506 a)

Classified evidence may be used by the prosecution without disclosure to the defense counsel "if disclosure would be detrimental to the national security". (II Rule 701 f) There is by contrast no provision for the defense to use classified information without disclosing it to the prosecution. The judge may, but is not required to, ensure that the defense gets a redacted or summarized version of classified evidence. Among the factors that the judge may weigh in making such a decision is how long it would take and how great a "burden" it would be for the government to produce an unclassified version of the evidence. (II Rule 701 f 2-4) If the classified evidence is actually exculpatory, then the defense will get "an adequate substitute". (II Rule 701 f 5)

Mental competence

If the court orders an examination of whether a defendant is (or was at one time) mentally incompetent, it may establish a board of inquiry that does not include even a single psychiatrist (by substituting a psychologist instead)--even though the board must present a finding on "the clinical psychiatric diagnosis". (II Rule 706 c) This is perhaps a reflection of the notorious support that the American Psychological Association has rendered the government in its abusive and psychological degrading treatment of detainees.

Furthermore, the standard by which competence is measured seems unusual. "Trial may proceed unless it is established by a preponderance of the evidence that the accused is presently suffering from a mental disease or defect rendering him or her mentally incompetent to the extent that he or she is unable to understand the nature of the proceedings or to conduct or cooperate intelligently in the defense of the case." (II Rule 909 e 2) It would be very hard to specify what 'intelligent' cooperation means. The normal basis for making a judgment about competence is the ability to cooperate 'effectively' in one's defense.

In any case, what to do with a defendant who is found to be mentally incompetent is ultimately left up to the Secretary of Defense (II Rule 909 f) who presumably may order that he be left to rot in confinement forever without trial (II Rule 1107 b 4).

The appearance of fairness in verdicts rendered

A defendant is found guilty of any charge if just two-thirds of the commission members so vote (though a charge carrying a mandatory death penalty requires a unanimous vote). (II Rule 921 c 3) "Deliberations of the members ordinarily are not subject to disclosure... Unsound reasoning by a member, misconception of the evidence, or misapplication of the law is not a proper basis for challenging the findings." (II Rule 923) Once again, there is no appeal in case of a total screw-up by the military.

Grounds for the death penalty

Some of the aggravating factors under which a commission may vote for the death penalty are rather vague, for example: "That the offense was committed with the intent to intimidate or terrorize the civilian population". (II Rule 1004 c 12) No specific civilian population is identified, nor are the terms 'intimidate' or 'terrorize' defined in the manual.

Note however this entry in the list of aggravating factors: "That the crime was preceded by the intentional infliction of substantial physical harm or prolonged, substantial mental or physical pain and suffering to the victim or to another person... The term “substantial mental or physical pain or suffering” is accorded its common meaning and includes torture." (II Rule 1004 c 6) In other words, by the rules of this Manual, those who have abused and tortured detainees at Guantanamo could be subject to the death penalty.


That point, I'm pretty sure, has not come out in any commentary to date on the new Pentagon Manual. Ahhhh....wait. I'd nearly forgotten, these rules apply only to people whom the President has termed "unlawful enemy combatants", and he surely would not label one of our own torturers thus.


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