Military Commissions
98. The US established military commissions at Guantánamo
in 2004, for the purpose of trying enemy combatants accused of
war crimes. However, following a legal challenge by one detainee,
the commissions were effectively ruled unlawful by the Supreme
Court in July 2006.[68]
It was necessary, therefore, for the Administration either to
abandon the commissions or to regularise their status. President
Bush chose the latter option. The Military Commissions Bill was
going through Congress at the time a group of us were in Washington,
in September 2006. We were able to discuss its provisions with
Senator Lindsey Graham, one of the three prominent Republican
Senators who were in negotiation with the Administration about
aspects of the Bill which they felt undermined civil liberties.
99. In summary, the Act as passed by Congress and
as signed into law by the President:
- Provides for military commissions
composed of at least five and up to twelve US armed forces officers
to hear cases against enemy combatants;
- Requires at least two-thirds of the commission
members to support a conviction;
- Stipulates that for a sentence of death, which
may only be sought if the defendant's actions resulted in fatalities,
all twelve commission members have to agree, and gives the final
decision on carrying out the sentence to the President;
- Provides the accused with the presumption of
innocence and requires proof of guilt to be established beyond
reasonable doubt;
- Protects the accused from being forced to testify
against himself and allows him to be represented by both a military
lawyer and a civilian one (although such lawyers will require
high security clearance);
- Allows the accused will be able to be present
for the proceedings unless he is ruled disruptive, to present
evidence and witnesses in his defence and to cross-examine any
witnesses against him;
- Provides for commissions to sit in public unless
that jeopardises the safety of individuals or intelligence (but
they will sit in Guantánamo Bay);
- At the discretion of the commission, allows hearsay
or evidence obtained by coercion (but not evidence obtained by
torture);
- Does not allow the accused to challenge the basis
of classified information relied upon by the prosecution;
- Allows a convicted person to appeal to the United
States Court of Appeal;
- Bars US courts from hearing applications for
a writ of habeas corpus made by detainees who have been
classified as enemy combatants;
- Prohibits any person from invoking the Geneva
Conventions or their protocols as a source of rights in any action
in any US court.
It is also important to note that acquittal by a
military commission does not mean release. A person acquitted
by a commission will remain an enemy combatant and thus will remain
subject to detention. Also, after a sentence has been served,
the convicted enemy combatant will be liable to be returned to
detention.
100. In Washington DC, we were told that military
commissions established under the new Act will commence work in
2007. It was suggested that they will hear between 25 and 50 cases
of detainees who are believed to have committed war crimes, although
in one conversation the potential number was put as high as 80.
Up to four commissions are expected to sit at any one time, but
the process will clearly take some years.
101. In some ways, the Military Commissions Act is
welcome: it sets out the rights of detainees, and it includes
important safeguards, such as a right of appeal. In other respects,
the Act is quite troubling. It provides for the continued use
of aggressive interrogation techniques, limits defendants' rights
to challenge evidence, prevents actions for habeas corpus,
and creates a revolving door in which detainees may be trapped,
whether convicted or acquitted.
102. The Government appears to share some of our
apprehension. In its evidence, the FCO states that,
The Government will study the details of the procedures
proposed by the Military Commissions Act, any subsequent elaborations
and the implications for those who might not be subject to trial.[69]
103. We
conclude that, although some aspects of the Military Commissions
Act are welcome, others give cause for concern. We welcome the
Government's undertaking to study the procedures proposed by the
Act. We recommend that the Government carry out that study without
delay and that it share the full findings of the study with this
Committee. If the Government's study finds that the procedures
proposed in the Military Commissions Act or in any subsequent
elaboration are inconsistent with international law or human rights
norms, it should make strong representations to the United States
Administration.
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