1. Failure to provide for questioning of potential commission members for possible challenge (no voir dire).

2. Failure to provide for challenges for cause of the potential members.

3. Failure to provide for peremptory challenge of the potential members.

4. Failure to provide for challenge for cause of the presiding officer.

5. Failure to ensure that the accused can confront all witnesses against him by being present at all sessions of the commission (unless he is disruptive).

6. Failure to permit civilian defense counsel to be present at all sessions of the commission.

7. Failure to provide that the presiding officer makes binding rulings of law, and otherwise presides as does a military judge under the UCMJ.

8. Failure to provide maximum sentences for specific offenses.

9. Failure to provide what crimes can result in the death penalty, and to require notice from the prosecution in advance of trial.

10. Failure to specifically provide that the principle of double jeopardy applies.

11. Failure to provide that the Rules of Evidence or their equivalent apply.

12. Failure to provide for a meaningful appeal, including review by the United States Court of Appeals for the Armed Forces (USCAAF) for sentences above a certain level.

13. Failure to provide for equal requirements and treatment of civilian attorneys, whether they are prosecutors or defense counsel.

14. Failure to prohibit members of a commission from discussing a case until the evidence is closed and deliberations occur.

15. Failure to provide the right to confront all witnesses, including those who testify in sessions from which the accused and/or civilian defense counsel are excluded and whose testimony detailed defense counsel may not discuss with the accused.

16. Failure to exclude unreliable evidence, such as unsworn statements.

Each of the foregoing omissions and failures in the current rules relate to rights or procedures provided to the accused in a trial under the Uniform Code of Military Justice (UCMJ), 10 USC 801 et seq., which grew out of the norms of the Geneva conventions. The Manual for Courts-Martial abides by these norms. For example, the military rules of evidence essentially track the federal Rules of Evidence.

We recognize that the full protections afforded by the UCMJ are not provided because the Secretary of Defense does not recognize potential defendants as prisoners of war. Nonetheless, we believe the foregoing failures are egregious denials of fundamental fairness that must be accorded any accused tried by a United States tribunal of any kind. To do less subjects our nation to ridicule by the international community. Worse, it subjects American service personnel captured in a future armed conflict to the same type of unacceptable and unfair treatment by their captors.