Pentagon Changes Rules for Military Commissions, but Fails to Ensure Fair Trials

The Department of Defense has announced several amendments to existing commission trial procedures designed, according to Pentagon spokespersons, to make the commissions process “more efficient.” While in the right direction, the changes are largely superficial, and fail to address significant flaws that still undermine the fairness and reliability of the commissions.

“The commissions are built on a flawed foundation,” said HRF Executive Director Michael Posner. “No amount of tinkering around the edges can rehabilitate a tribunal premised on principles – denial of evidence to the accused, lack of independent adjudication and review – that are anathema to the rule of law.” Posner added, “It is past time for the commissions to be abandoned; detainees suspected of committing war crimes should be tried by courts martial.”

The amended procedures, announced on August 31, 2005 will:

• bring the functions of the presiding officer (an attorney) more in line with those of a traditional judge by providing that only such officer, rather than all commission members, will rule on questions of law
  
• make it more likely that the accused will be present for the trial by changing the standard from “may be present” to “shall be present” to the extent consistent with national security
  
• exclude information from trial if access to it is denied to the defendant and the presiding officer determines that this would prevent a full and fair trial.

As an official observer to the Defense Department-convened military commissions at the U.S. Naval Base at Guantánamo Bay, Cuba in August and November 2004, Human Rights First has witnessed firsthand their many shortcomings and has made numerous recommendations for their reform. “The changes announced today fall far short of what we have long called for and what is still needed,” added Posner, “and further underscore the futility of trying to mend a fundamentally flawed structure.” Key remaining problems include:

• Presiding officers will still lack the autonomy and independence possessed by military judges in courts martial, where their functions and facilities are kept separate from those of the prosecutors and convening authorities.
  
• Presiding officers may still be overruled on decisions concerning whether to admit evidence, including when that may have been gained through coercive interrogation – determinations that go to the core of providing the accused with a full and fair trial.
  
• The new rule permitting presiding officers to exclude information offered by the prosecution to which the accused has been denied access still allows other panel members to overrule that decision, and enables exclusion only where it would deny a “full and fair” trial.

For more information on military commissions, see:

http://www.humanrightsfirst.org/us_law/detainees/militarytribunals.htm.