IF NOT KNIGHTED, YOU'LL BE HANGED OR SHOT

Justice will be done at Guantanamo (Ruth Wedgwood, July 9 2003, Financial Times)

The use of military tribunals is preferred under the Geneva Conventions even for prisoners who are lawful combatants. The rationale is that military fact-finders will understand and share the interest in a protective law of war. So, too, the Geneva treaties allow criminal proof involving sensitive operational information to be presented behind closed doors. The rules of evidence under Geneva also permit the consideration of any relevant evidence.

The procedural rules for the Guantanamo war crimes trials were debated for 18 months in the light of the Geneva principles and the particular
problems presented by al-Qaeda's "learning organisation", which has proved adept at exploiting disclosures of US intelligence methods. The basic framework was settled only after Donald Rumsfeld, the US defence secretary, sought the advice of bipartisan wise men (people who might once have been called elder statesmen). These included Lloyd Cutler (White House counsel to President Bill Clinton), Bernard Meltzer (a Nuremberg prosecutor and University of Chicago law professor) and William Webster (a judge, and chief of the Federal Bureau of Investigation under President Jimmy Carter and of the Central Intelligence Agency under President Ronald Reagan). [...]

The rules respect the common law's presumption of innocence in favour of the defendant, burden of proof on the government, right to
cross-examination of witnesses, right to call defence witnesses, mandated disclosure of any exculpatory evidence and requirement of proof beyond reasonable doubt. A defendant is given his choice of military counsel and can engage any civilian counsel who qualifies for security clearance. Any finding of guilt must be rendered by a two-thirds vote. All convictions will be reviewed by an independent appellate panel - with one or more civilian members endowed with authority to reverse judgments for serious errors of law. Members of the press are entitled to witness the full trial proceedings, except when classified or sensitive information is presented.

In ordinary civilian trials, there is no significant cost to sharing everything the government knows. But this does not hold against the background of al-Qaeda's stated ambition of mounting new attacks. In partial concession, the tribunal rules provide that discrete pieces of evidence may be presented in closed court and, indeed, may need to be examined by the military defence counsel rather than the defendant.

This is not ideal and there may be good reasons for delaying some trials until the operational backbone of al-Qaeda is broken. But the call for timely trials must make its peace with the equal right of civilians to be guarded against al-Qaeda's violence. As Winston Churchill aptly noted in October 1940: "I do not relish laying bare to the enemy all our internal resources."

We favored administering Rule 303. Posted by Orrin Judd at July 10, 2003 9:56 AM