Prohibiting Military Commissions Except on the Battlefield

From  The American Freedom Agenda

Prohibiting Military Commissions Except on the Battlefield

The first point in the American Freedom Agenda’s 10-point legislative program to restore the Constitution’s checks and balances and protections against government abuses would prohibit the President from establishing military commissions for the trial of alleged war crimes except on the battlefield when necessary to preserve fresh evidence or to prevent local anarchy.

Military commissions invite erroneous guilty verdicts. They combine judge, jury, and prosecutor in a single branch of government, the very definition of tyranny according to the Founding Fathers. Under the Military Commissions Act of 2006, the executive branch prosecutes the accused, provides military judges to preside over the trial, and these same judges decide on guilt or innocence.

Military commissions may rely on secret evidence or hearsay that the accused has no opportunity to rebut. Cross-examination, however, has been proven to be the greatest engine ever invented for the discovery of truth. The accused is also limited in the ability to call exculpatory witnesses to discredit the prosecution’s case.

The law of necessity or self-preservation does not justify military commissions outside the battlefield. Experience demonstrates that war crimes, for example, providing material assistance to a foreign terrorist organization, can be successfully prosecuted in civilian courts without compromising national security. Under the Classified Information Procedures Act of 1980, the government is permitted to provide a summary of classified information to the defendant that protects intelligence sources or methods in prosecuting crimes. Thus, civilian courts presided over the 1993 World Trade Center bombing prosecutions, the prosecution of John Walker Lindh, the prosecution of Zacarious Moussaoui, the prosecution of Jose Padilla, and numerous other prosecutions of terrorist-linked crimes. At present, Osama bin Laden is under federal civilian indictment for allegedly conspiring to destroy national defense facilities. In the enactment of the Military Commissions Act, neither the executive branch nor Congress provided a crumb of evidence that civilian courts were ill-equipped to preside over war crimes prosecutions. Indeed, then Assistant Attorney General Michael Chertoff testified before the Senate Judiciary Committee in 2002 that federal courts had performed impeccably in terrorist trials. Finally, if military commissions were non-trivial instruments to in fighting international terrorism, they would have been dormant for more than five years before summoned into use to try an offense that is routinely prosecuted in federal courts.

In the single case prosecuted before a military commission involving Australian David Hicks, the tribunal showed to be less stern in imposing punishment than comparable civilian judges. Mr. Hicks pled guilty to providing material assistance to a foreign terrorist organization by receiving training in on one of its camps. His was sentenced to nine months imprisonment, probably to be served in Australia. Mr. Lindh pled guilty to the identical crimes as Hicks, yet he received a 20-year sentence by a civilian court.

If it were certain that all those accused of war crimes at Guantanamo Bay were guilty, for example, notorious membership in an odious organization like the Nazi Waffen SS, then military commissions would be less problematic. But it seems probable that many detainees at Gitmo are innocent. Both a former commandant and deputy commandant at Gitmo in interviews maintained that most of its detainees do not belong there. Approximately 95% were apprehended by the Northern Alliance or other non-United States forces in Afghanistan with long histories of tribal, ethnic, religious, or personal vendettas. Coupled with the payment of bounties for identifying unlawful enemy combatants, these vendettas probably occasioned false accusations to retaliate against local adversaries. This is not to say that all or even most Gitmo detainees are innocent. But it does mean that reliable legal procedures are necessary to distinguish between the guilty and the innocent, the signature of western civilization. Moreover, unjust verdicts will be exploited by Al Qaeda to recruit new terrorists.

In sum, military commissions make us less safe, not safer.