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07/04/2011 | US - In Defense of Military Tribunals

Keith Allred

We trust them to try American soldiers accused of serious offenses. Why shouldn't we trust them with KSM?.


The Obama administration announced Monday that it would try Khalid Sheikh Mohammed and other 9/11 conspirators in military commissions at Guantanamo Bay. This is heartening news. Presidents from both parties have signed bipartisan bills authorizing these tribunals, and the Supreme Court has confirmed their constitutional authority to do so. Yet there continue to be lingering criticisms of their fairness and competence. These should be put to rest.

The argument that any trial not held in a federal court is unfair to the accused is easily rebutted: Every year thousands of American citizens who serve in the military are tried for serious crimes in military courts. American military law, with its system of courts-martial, dates to the Articles of War of 1775, adopted 14 years before the Constitution and the Federal Judiciary Act of 1789, which created federal trial courts.

Although military law has been amended many times since 1775, members of our armed forces are still tried for the full range of common felony crimes—and may be sentenced to life in prison without parole—without the right to a randomly selected jury of their peers. Rather, the commanding officer of the accused chooses a panel of court-martial "members" superior in rank to the accused.

A vote of two-thirds of the members—not a unanimous decision—is enough to convict. And panels can include fewer than six members, even though six is the smallest number of jurors that the Supreme Court has determined is constitutionally acceptable in civilian trials. The Supreme Court has upheld the constitutionality of these military courts because the Constitution expressly gives Congress the power to "make Regulations for the Government of the Land and Naval Forces."

Another criticism of military commissions is that their rules of evidence permit the use of hearsay that would not be admissible in federal courts. This is true, but it is no cause for alarm. International tribunals, including the International Criminal Court, have no rule whatsoever about hearsay. The ICC permits the admission of any evidence that is "relevant and necessary" to its decision. Even in federal courts, a great deal of hearsay evidence is routinely admitted under a large number of well-recognized and long-standing exceptions to the hearsay rule. And, of course, hearsay admitted into evidence at a military commission could benefit the accused as well as the government.

Then there's the charge that military commissions are new and untried, not ready for prime time. This is clearly untrue: Military courts have been trying felony cases under the Uniform Code of Military Justice for nearly 60 years, with more than 200 years of tradition and experience all told. Military judges are guided by a well-established body of military criminal law, created by two levels of military appellate courts and the Supreme Court. Half a dozen death penalty cases tried by courts-martial have been affirmed by the Supreme Court. The same military judges who preside over these serious cases preside over military commissions.

Finally, critics are concerned that military commissions may admit evidence obtained under coercion. Yes, commissions are subject to different standards of evidence: Congress has authorized commission judges to admit statements based on various factors, including their perceived reliability, probative value, and likelihood of serving the interests of justice. But the bright line is that statements obtained by torture or cruel treatment are not admissible.

Judges make these difficult determinations every day, and the rule applicable in the ICC is similar. It permits the admission of evidence obtained in violation of "internationally recognized human rights," unless admission of the evidence would "cast substantial doubt on the reliability of the evidence" or "seriously damage the integrity of the proceedings."

Military commissions are well within Congress's express constitutional authority to define and punish offenses against the law of nations. They are part of a body of military law that is more than 200 years old and has long been subject to meaningful and substantive appellate review. They are presided over by experienced judges who are honor-bound to hear and apply the law fairly. American citizens in the armed forces are tried by military courts, and there is no good reason why unlawful combatants should not be tried there too.

**Capt. Allred is a retired Navy judge who presided over the military commission trial of Salem Hamdan, the first American war crimes trial since Nuremberg. He was associate dean of the George C. Marshall European Center for Security Studies from 2003-2005.

Wall Street Journal (Estados Unidos)


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