Two critical questions that must be addressed are, first, whether these special military trials meet basic fairness and due process standards, and second, whether the approach taken by military tribunals is desirable even if they can be considered adequate for purposes of due process. The fact that Hicks has admitted his guilt should not be taken as a green light for these military trials to continue.
It must be understood that the special military commissions set up by the Bush Administration to prosecute suspected terrorists are worlds apart from the military trials that normally take place under the Uniform Code of Military Justice (UCMJ). Many of the traditional due process protections provided in typical UCMJ trials are not present in the special military commissions that were created to deal with alleged terrorists. Additionally, the rules of the UCMJ are not binding on, or applicable to, military commissions trials.
Under the Military Commissions Act of 2006:
- Detainees do not have the right to be represented by counsel of their choosing.
- Evidence obtained through torture, coercive interrogations, or improper long-term detention is admissible in certain circumstances, as is hearsay evidence.
- No regular judicial appeal is permitted. The only avenue for judicial review is through the "convening authority", which woud be the Secretary of Defense or his designee, who cannot be characterized as impartial.
- Detainees are denied the same fundamental due process protections that are provided for defendants in typical military criminal cases and in criminal trials in U.S. courts and international tribunals. For example, detainees do not have the right to prompt notification of the charges issued against them, nor do they have a right to speedy trial before an impartial court, and may be subject to secret trials closed to the public.
- The applicability of international law in U.S. courts, particularly the Geneva Conventions, is severely constricted.
These deficiencies are nothing new to the Guantanamo detainee trials. On June 29, 2006, the U.S. Supreme Court in Hamdan found these deficiences to be so blatant and unacceptable that it rejected the first set of military commission procedures (established under Military Commission Order No. 1), finding them to be in violation of U.S. military law and in conflict with the requirements of the Geneva Conventions. It was in response to the Court's decision in Hamdan that Congress made changes to the rules for the military commissions, enacting the Military Commissions Act of 2006.
Unfortunately, the new standards do not come close to remedying all of the problems that the Supreme Court identified in Hamdan. For example, the judge in Hicks' hearing threw Hicks' two civilian counsel out of the courtroom, finding that they were "not authorized to participate in the military commission proceedings." Under the MCA, detainees may be represented by civilian and military attorneys, so long as defense counsel meet certain specifications. Civilian attorneys qualify to represent detainees based on regulations prescribed by the Secretary of Defense. However, the Defense Secretary has not yet issued those regulations. One of Hicks' attorneys, Joshua Dratel, refused to sign a form agreeing to be bound by unwritten regulations, thereby signing off on his ethical obligations carte blanche and being subject to a system that makes up the rules as it goes.
Rebecca Snyder, another of Hicks' civilian attorneys, is a military reserve lawyer, but was disqualified from representing Hicks because she had not been called into active duty. She would have to change her reserve status before being permitted to appear before the commission. Such a bold move by the judge effectively constitutes a rejection of Hicks' entire defense team, leaving Hicks with only his military attorney to defend him.
But even if a greater degree of due process was to be provided in the military commissions procedures, the military trial approach cannot be justified. For years, the United States has strenuously objected to the use of military trials as a matter of principle, because of concerns that this process has been misused in so many cases with the aim of producing expedited results and bypassing normal rule of law standards.
Another significant problem is that it is not at all clear that alleged terrorists fall outside of the jurisdiction of the regular criminal courts as "unlawful enemy combatants" in wartime. Technically, under traditional standards of international law, unless the detainees were captured on a battlefield, such as in Iraq or Afghanistan, there is no basis for treating them as "war criminals" subject to military trial as unlawful enemy combatants. They may have committed international crimes - a fact that has yet to be established. But their actions should not be considered war crimes, since the "war on terrorism" is neither an armed conflict between governments, nor an external conflict involving competing national factions, under the terms of the Geneva Conventions.
Whatever the technical legalities or the merits (or demerits) of the military trials may be, the United States should not now be supporting the use of military trials when, with good reason, we have objected to this approach for so long, when other governments bypassed the regular legal profess for the sake of expediency.