WASHINGTON - The military "war crimes" commissions created to
try US war-on-terror detainees held in Guantanamo bear only a partial
resemblance to normal US courts and are heavily criticized for flouting
fundamental principles of American law.
Created in 2006 by the US
Congress, the commissions have been put to the test just once, in the
trial of Salim Hamdan, the former driver of Al-Qaeda chief Osama Bin
The result of that trial, concluded in August, was mixed:
defense lawyers say he was denied basic rights under the special
military commissions legislation, and the military jury found him
guilty of supporting terrorism.
But it rejected the government's
most serious charge of conspiracy to terror, and, snubbing prosecutor
requests for a death sentence, imposed a remarkably light sentence,
making the Yemeni eligible for release in five months after accounting
for time already spent in US hands.
On Monday the second such
trial begins, of Ali Hamza Ahmad al-Bahlul, a propagandist for Al-Qaeda
who faces up to life in prison if convicted multiple terror and
The commissions are mostly faulted for
allowing types of evidence that would be disallowed in civilian court
or even normal US military courts martial.
"Only in Guantanamo
Bay and North Korea can prosecutors utilize evidence obtained by
torture in a criminal trial", said Hamdan's military lawyer, Navy
Lieutenant Commander Brian Mizer.
"Military commissions are a
very different world," said Lieutenant Colonel Suzanne Lachelier, a
military lawyer assigned to defend Ramzi Binalshibh, who is accused of
helping organize the September 11, 2001 attacks.
with the setup of regular courts martial is that while the judge and
jury are military, the prosecution and defense teams mix both military
and civilian lawyers.
Most important is the evidence allowed: as
Hamdan's case showed, the commissions accept secret testimony,
testimony and confessions that may have come from duress or torture,
and restrictions on media coverage.
The commissions also accept
"indirect evidence" -- that taken from witnesses who would not appear
in the court to confirm the testimony. Normal US courts would reject
such evidence as "hearsay".
Accepting such evidence would deny
the standard principle in US law that an accused is able to confront
the testimony against him.
Moreover, in the Guantanamo tribunals
the prosecution can claim that their evidence is classified as secret,
and force the judge to hold a hearing closed to any outsiders.
The use of classified documents is an integral part of the procedure, said Lachelier.
government can decide to use as evidence one of its documents without
the first informing the defense and letting it see what is in the
documents," she said.
That leaves the defense to guess at what the prosecution has in its evidence, she said.
the prison sentences the commissions hand down are supposed to be added
onto whatever time the defendant has already spent in US captivity.
in the Hamdan trial, the military judge Admiral Keith Allred rejected
that and deducted "time served" from Hamdan's sentence of five and a
That meant that Hamdan would only have to spend five more months at Guantanamo.
the Pentagon said it is not planning to release Hamdan any time soon --
the Yemeni will continue to be held as an "enemy combatant."