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TERROR: Military Tribunals

Author: Esther Pan
March 10, 2004
This publication is now archived.

When will the military tribunals for Guantanamo Bay detainees begin?

It's unclear. The United States on February 24 charged two suspects, Ibrahim Ahmed Mahmoud al-Qosi of Sudan and Ali Hamza Ahmed Sulayman al-Bahlul of Yemen, with conspiracy to commit terrorism and war crimes against civilians. These are the first charges brought against any of the roughly 650 foreign detainees held at the U.S. military base at Guantanamo Bay, Cuba. No dates have been set for the proceedings, which will take place in special military tribunals operated by the Department of Defense.

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How long have detainees been held at Guantanamo?

After 9/11, U.S. officials decided to use the Guantanamo facility to hold individuals captured in the war on terror. The first detainees arrived soon after the U.S. attack on al-Qaeda and Taliban forces in Afghanistan began in October 2001. Human rights groups and legal advocates have criticized the conditions under which detainees are held and the time it has taken to press charges against them.

Why weren't charges brought earlier?

U.S. officials have been interrogating the captives and preparing the legal framework for the tribunal process. President Bush issued an executive order on November 13, 2001, authorizing the tribunals for foreigners accused of terrorism, but criticism of the process spurred the Defense Department to modify the plan in March 2002. On July 3, 2003, Bush designated six of the detainees as candidates for military tribunals. Qosi and Bahlul will be the first of the six to face a tribunal.

How does the government defend the detentions?

In a speech in Miami on February 13, 2003, Secretary of Defense Donald Rumsfeld called the long detention of detainees a "security necessity." He said that if the detainees were released, "they would return to the fight and continue to kill innocent men, women, and children." Rumsfeld also said detainees under interrogation have provided important intelligence about Qaeda activities to authorities.

What are the charges against Qosi and Bahlul?

The February 24 indictment accuses Qosi of being Osama bin Laden's accountant, exchanging money for him on the black market, acting as a courier for Qaeda funds, and working as a treasurer for a business that financed Qaeda activities, the Associated Press reported. The indictment accuses Bahlul of being a bin Laden bodyguard and a Qaeda media propagandist who made a video glorifying the bombing of the USS Cole in Yemen in October 2000, an attack that killed 17 sailors.

Do the accused have access to lawyers?

Yes. Air Force Lieutenant Colonel Susan Shaffer will defend Qosi, and Navy Lieutenant Commander Philip Sundel and Army Major Mark Bridges will act as counsel for Bahlul.

Who is in charge of the tribunal process?

John D. Altenburg Jr., an army major general who retired in 2002. His title is Appointing Authority for Military Commissions. He will not serve on the tribunals, but will supervise the procedures under which the cases are conducted. Altenburg will decide which cases go before tribunals and whether they will be heard in open court or, because of security concerns, in closed or partially closed proceedings. An army lawyer for 28 years, he previously served as assistant judge advocate general for the Department of the Army. Air Force Brigadier General Thomas L. Hemingway, a former Air Force staff judge advocate and director of the Air Force Judiciary, will supervise the legal staff and act as Altenburg's legal adviser.

How will the military tribunals work?

Cases will be heard by a panel of three to seven military officers. Altenburg will appoint one member, who must be a military lawyer, as each panel's presiding officer. A two-thirds majority of the panel must agree to convict or impose a sentence. The panel may impose the death penalty, but that sentence requires a unanimous decision. The tribunals will admit some evidence--hearsay, for example--that is not admissible in U.S. civilian courts. Detainees can hire civilian lawyers at their own expense to work alongside the military attorneys assigned to them.

Can tribunal decisions be appealed?

Yes. On December 30, 2003, the Pentagon named four members of a review panel to hear appeals:

  • Griffin B. Bell, former U.S. attorney general and former judge for the United States Court of Appeals, Fifth Circuit.
  • Edward G. Biester, judge of the Court of Common Pleas of Bucks County, Pennsylvania, Seventh Judicial District. He is a former attorney general of Pennsylvania.
  • William T. Coleman, Jr., senior partner and senior counselor in the law firm O'Melveny and Meyers. He is a former U.S. secretary of transportation.
  • Frank Williams, chief justice of the Rhode Island Supreme Court.

More members may be added later, experts say. Appeals will be heard by three members of the review panel; the makeup of each appeals court will be decided by review panel members. Panel decisions can be appealed to the secretary of defense and the president, but not to civilian courts.

Will international observers be allowed to watch the proceedings?

Yes. Members of Congress, reporters, and representatives of the International Red Cross will be allowed in, The New York Times reported February 23. But the government says there is not enough space or capacity at the Guantanamo Bay facility to accommodate others. Advocacy groups, including Human Rights Watch, Amnesty International, and Human Rights First have objected.

Is the United States under pressure to release more detainees or charge them?

Yes. Marine Corps Major Michael Mori, defense lawyer for Australian detainee David Hicks, told the Associated Press on January 21, 2004, that his client's mental state has "degenerated" after two years of confinement, echoing criticisms from international rights groups. Rumsfeld stressed on February 13 that the United States "has no desire to hold enemy combatants any longer than is absolutely necessary" and announced that an additional review panel will examine detainees' cases on a yearly basis to decide who will be tried before military tribunals, who will be repatriated to home countries, and who will be released. A detainee's foreign government will be allowed to submit information to the review panel on the detainee's behalf, said Paul Butler, deputy assistant secretary of defense for detainee operations, in a February 13 briefing. The Pentagon has expedited the review process and has released more than 90 detainees to their home countries, experts say.

Are the detainees considered prisoners of war (POWs)?

No. White House spokesman Ari Fleischer, in a briefing February 7, 2002, said the Guantanamo detainees are not entitled to POW privileges under Article 4 of the Geneva Conventions. Fleisher said al-Qaeda and Taliban are "unprivileged" or "unlawful" combatants because they don't pass the four traditional tests for so-called state parties to war, as defined in the conventions. By this definition, soldiers must:

  • wear uniforms or distinctive insignia;
  • have a recognizable chain of command;
  • carry arms openly; and
  • conduct military operations in accordance with the laws and customs of war.
What do critics say about the tribunal process?

Military lawyers assigned to defend detainees have criticized it. Sundel told The New York Times February 24 that he and his co-counsel might challenge the tribunal process, saying, "We have concerns about virtually every aspect of the military commission process as it relates to our client getting a fair trial." Bridges told Reuters February 25 that the checks and balances enshrined in the modern legal system "don't exist in the military commission system." Mori criticized the tribunals as "created and controlled by those with a vested interest only in convictions," the Associated Press reported January 21. Many legal experts and others have called the military tribunal process unfair to suspects because they can be held as long as the U.S. government considers them a threat--even after they have been convicted and served a sentence. Before being charged, the detainees at Guantanamo have no access to lawyers, their families, or international aid groups. The military tribunal process is also not subject to review by independent courts.

Do the tribunals face legal challenges?

Yes. Families of detainees from Britain, Australia, and Kuwait have brought a case before the U.S. Supreme Court challenging the military tribunal process. They argue that Guantanamo detainees are entitled to lawyers while in detention and eventual access to civilian courts. A decision is expected by mid-summer, experts say. Military lawyers assigned to represent the detainees filed an amicus curiae (friend of the court) brief with the Supreme Court in January that said, "the Constitution cannot countenance an open-ended presidential power, with no civilian review whatsoever, to try anyone the president deems subject to a military tribunal, whose rules and judges have been selected by the prosecuting authority itself," The Washington Post reported January 13.

How have tribunal advocates responded?

A group of distinguished legal experts filed an amicus brief March 3 supporting the military tribunal process. The brief states that critics of the process are ignoring "the settled rules of the law of armed conflict ... which permits nations to defend their citizens through the use of military force, including the capture and detention of enemy combatants throughout the conflict ... so long as an armed conflict is still in progress." Ruth Wedgwood, a professor of international law at the Johns Hopkins University and one of the filers, says the brief argues that al-Qaeda, a terrorist group, "cannot be considered a state party to the Geneva Convention;" therefore, the Qaeda fighters being held at Guantanamo are not entitled to POW status or habeas corpus rights.