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Military tribunal

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A military tribunal is a kind of military court designed to try members of enemy forces during war time, operating outside the scope of conventional criminal and civil matters; the judges are military officers; and the judges fulfill the role of jurors.

A military tribunal is an inquisitorial system based on charges brought by a military authority, prosecuted by a military authority, judged by military officers, and sentenced by military officers against a member of an adversarial force.

The Nuremberg Trials is one of the best known military tribunals.
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The Nuremberg Trials is one of the best known military tribunals.

Contents

Military Tribunals in the United States

The United States has, infrequently, made use of military tribunals or commissions, rather than rely on courts martial, within the military justice system. General George Washington used military tribunals during the American Revolution.

President Abraham Lincoln used military tribunals during and after the American Civil War.

President Franklin Roosevelt ordered military tribunals for some German prisoners accused of sabotage as part of the German Operation Pastorius. His decision sparked controversy: some critics thought that the tribunals were unjust. The suspects were not aware that one of the suspects had been promised immunity if he implicated the other saboteurs. The convicted suspects were executed by firing squad the same day they were convicted. The suspect who had been promised immunity was given a thirty year sentence.

Court system

Military tribunals are led by a Presiding Officer designated by the Appointing Authority (which is the Secretary of Defense or other designated authority); the Presiding Officer does not take part of the final court decision.

Charges are brought by the Chief Prosecutor from the Office of Military Commissions (OMC). Charges that maybe be brought to a military tribunal range from murder, rape, and other typical crimes, to war-specific crimes, like attacking civilians, using human shields, terrorism, and war crimes in general.

The Military Tribunal Panel is composed of three to seven judging officers, depending on the charges raised against the accused. They act as judges and jurors.

While civilian juries require a unanimity to convict, tribunals only require two thirds majority when no death penalty is involved, for death penalty convictable tribunals, full seven judging officers panel is required to have a unanimous decision.

The accused is represented by Office of the Chief Defense Counsel from the Office of Military Commissions (OMC), defendants may choose an available civilian defense attorney.

Civilian attorneys must be qualified by the Office of Military Commissions prior to be legible to be selected by a defendant.

After the end of trial, the tribunal goes onto review by the Secretary of Defense, who will forward the record of trial and all recommendations to the President for final decision.

Jurisdiction

Military tribunals have jurisdiction over any person under custody of the United States armed forces, no matter how he was captured or in what country it is, who is an enemy combatant and charged with crimes by a military authority.[citation needed]

Controversy

While tribunals can provide for quick trials under the conditions of war, many say that occurs at the expense of fair justice. Rules for admissible evidence are usually more lax than in civilian trials; hearsay, if it would have “probative value to a reasonable person”; and secret evidence can be used to convict defendants.

Time constraints and the inability to obtain evidence can greatly hamper a case for the defense. Civilian trials must be open to the public, while military tribunals can be held in secret. Because conviction usually relies on some sort of majority quota, the separability problem can easily cause the verdict to be displeasing not only to the defendant, but to the tribunal officials as well.

Decisions made by a military tribunal cannot be appealed to federal courts, the only way to appeal is a petition for a panel of review which may include civilians as well as military officers, to review decisions. The president, as commander in chief, have final review of all appeals.

Opponents of military tribunals argue that such courts would violate guarantees provided by the constitution.

Trial by Military Tribunal of the Guantanamo detainees

President George W. Bush has ordered that the detainees imprisoned at the Naval base on Guantanamo Bay were to be tried by military commissions. His decision also sparked controversy.

Critics have pointed out that ordering trials by military commission is a wartime power of the US President, but that the United States is not, formally, at war. The US constitution reserves to the US Congress the power to declare war. They say that Congress did not declare war, so President Bush does not have war-time powers. Therefore, they argue, ordering trials by military commission is a constitutional violation.

Those who have defended President Bush's decisions have argued that the Emergency powers that Congress granted the President implied granting war-time powers.

Defenders of the Bush decision say that sacrificing the suspect's human rights is required in order to keep confidential classified information security officials must keep secret in order to pursue the "war on terror".

Critics pointed out a number of differences between President Bush's trials by military commission:

  • The prosecutors can use evidence extracted under torture.
  • The presiding officers can use classified evidence that the suspect was not allowed to know, and thus had no fair way to rebut.
  • The officer in overall charge of the tribunal process was going to be monitoring the commissions, and would have been authorized to shut down a commission, at any time, without explanation.
  • Secretary of Defense Donald Rumsfeld said that the suspects could not count on being released, even if the commission ruled that they were innocent of their charges.

In September 2005 the Department of Defense quietly announced several changes to the rules. One change was that suspects could be allowed to learn the details of classified evidence against them if the chief presiding officer ruled that this would not pose a threat to national security. Many critics argued that this was a mere cosmetic change, and that it still allowed those administering the commissions to keep from them all the evidence that would prove their innocence.

During the summer of 2005 leaked memos provided a paper trail showing that Major Robert Preston and Captain John Carr, who had been tapped to serve as prosecutors in the commissions had requested transfers to other assignments because the Chief Prosecutor had repeatedly assured them that the trials would be rigged. In these memos, they had recorded that the Chief Prosecutor had assured them that the officers presiding over the commissions would be chosen so that they would be sure to convict. And these memos reported that they were told that all the evidence that might prove the suspect's innocence could be classified as national security secrets, so the suspects would not receive access to it.

See also

External links