Hours after Sept. 11, President Bush promised to bring al-Qaida members to justice, or bring justice to them. "The United States will hunt down and punish those responsible for these cowardly acts," the president said. Two months later, he authorized special military commissions to try suspected terrorists. Four cases got under way last August. The Supreme Court will decide soon whether to review one of them, in an appeal brought by Salim Ahmed Hamdan, reportedly Osama Bin Laden's former driver.
Meanwhile, last month the Department of Defense announced several long-awaited changes to the procedures that the commissions follow. The stated goal is to make the tribunals more like a "judge" and "jury," in response to widespread criticism that the commissions operated with too much secrecy and too little attention to basic rights. But the changes do little in practice to make the proceedings fairer—and in one key respect represent a step backward. The Pentagon's new rules seem timed to persuade the Supreme Court to deny review of Hamdan's case and let the trials proceed at Guantanamo without oversight by the civilian federal courts. If the justices fall for that gambit, they will leave in place procedures potentially flawed enough that their implementation could be a war crime.
The new rules reaffirm that the Pentagon may hold trials with just three officers on a commission panel. Measured against the goal of bringing the trials more in line with a civilian jury, this clearly falls short of the mark; the Supreme Court established in the 1970s that civilian criminal juries must have at least six members. For military trials, however, the more relevant legal standard is the court-martial. Under the Uniform Code of Military Justice, a panel of at least five is required for trying serious crimes short of capital murder. Since the Pentagon's commissions can convict on a two-thirds vote, the defendant has to secure two out of three votes to avoid conviction. Historic practice does not support that burden. Important military trials have always taken place before a panel of five.
The new rules also remove the officer presiding over the trial from the panel that is sitting in judgment, limiting his role to ruling on questions of law and challenges to the impartiality of the panelists. This should be a good thing, because it makes the commissions look more like conventional courts-martial. In practice, however, it won't work that way. To date, retired Maj. Gen. John Altenburg Jr. has made many of the key legal decisions, including approval of the charges that Hamdan and the other defendants face. Altenburg hand-picked the current presiding officer, Col. Peter E. Brownback III, with whom he has social ties. Under these circumstances, it's impossible to be confident about Brownback's independence as he reviews challenges to Altenburg's rulings. By contrast, Article 26 of the UCMJ ensures the independence of military judges by isolating them from the chain of command that has convened a trial. A major question confronting the commissions is whether conspiracy—the only charge Hamdan faces—is a crime under the law of war, and so can be charged before the commissions in the first place. International precedent suggests it is not. Brownback's potential conflict of interest may mean this issue will not get a fair hearing.
Other rule changes also fall short. Civilians have a constitutional right to be present at trial and confront all witnesses and evidence presented against them. Soldiers have a similar right under military law. Historically, so have defendants who have been tried by military commissions. The new rules only encourage the presiding officer to allow the accused to be at trial but stop short of creating a right to be present. The presiding officer retains the authority to exclude the defendant and his civilian counsel during the presentation of classified evidence. This means convictions may still be based on evidence that the defendants are not allowed to see, a real possibility given that Hamdan has already been excluded from portions of his pretrial hearings. A defendant's right to confront the evidence against him has been guaranteed in every previous U.S. war crimes trial, including those conducted in secrecy for security reasons during World War II. In 1949,Gen. Douglas MacArthur overturned the conviction and death sentence of a Japanese lieutenant because a single classified document viewed by the commission that tried him was not provided to the defendant.
The precedents of the WWII era also make clear that it is in itself a war crime for a country to refuse to grant a defendant captured on the battlefield a trial that meets the minimum standards of fairness established by customary international law. That is the case even if the accused are illegal combatants who don't qualify for protection under international treaties, a designation the Bush administration has claimed for the Guantanamo detainees. The prosecutors, trial panel members, and senior Pentagon officials overseeing the current commissions could all, in theory, be criminally liable for their involvement. The likelihood of such prosecutions is tiny. But the risk of harm to American credibility and undermining of international legal cooperation is not.
If the Bush administration is really interested in granting the Guantanamo detainees "full and fair trials," as it says, it should start over. Regular court-martial procedures would comply with the Third Geneva Convention without jeopardizing prosecutors' chances of winning their cases. Courts-martial, after all, find defendants guilty all the time. And the court-martial system also has rules for protecting classified evidence, as do the federal courts. There is no need for the United States to violate the customary law of war in the process of prosecuting others for allegedly doing just that.