Military Tribunals vs. Federal Courts

The Chicago Tribune today has a long investigative article on how the recent arrests of allegedly high ranking Al Qaeda members reopen questions about military tribunals. The article contains this description of the difference between tribunal and federal court proceedings:
How military and civilian courts would differ

The Bush administration wants to try suspected terrorists in a special military commission that would likely act in secret. Here is how a military commission, as proposed by Defense Secretary Donald Rumsfeld, would differ from a federal criminal court:


CRIMES: Defined by the Defense Department

PRESIDING OFFICIAL: A military lawyer, called a judge advocate, who is appointed and acts as a member the panel.

DELIBERATORS: A panel of three to seven military officers.

DEFENSE : Appointed by the defense secretary or someone he names as the appointing authority.

RULES OF EVIDENCE: A military lawyer is assigned to represent the accused, who can hire a civilian lawyer as well. The civilian lawyer could be barred from sensitive proceedings and evidence. The presiding officer decides whether admit or exclude evidence. There are rules governing suppression of evidence.

SECRECY: The presiding officer has broad discretion to close the proceedings.

DECISIONS: Conviction and sentencing require a two thirds vote.

DEATH SENTENCE: Only by unanimous vote of a commission of seven members.

RIGHT OF APPEAL: The accused cannot appeal to a civilian court. A review panel of three military officers or commissioned civilians, including judge, can recommend new proceedings.


CRIMES: Defined by Congress and state legislatures

PRESIDING OFFICIAL: A federal judge, nominated by the president, confirmed by the Senate and appointed for life.

DELIBERATORS: A jury of 12 civilians, randomly drawn from voter lists, sometimes combined with driver lists. The lawyer for the accused can eliminate potential jurors.

DEFENSE: The Constitution requires that the judge appoint a defense attorney if the accused cannot afford one.

RULES OF EVIDENCE: Federal rules and case law exclude certain types of evidence, such as hearsay and illegally obtained statements.

SECRECY: The Constitution guarantees a public trial, except in certain cases, normally involving children.

DECISIONS: Must be unanimous in conviction and sentencing.

DEATH SENTENCE: As in all sentencing, the jury must be unanimous.

RIGHT OF APPEAL: The accused has the right to appeal the conviction or sentence to a higher (appellate) court.

Sources: U.S. Department of Defense, National Institute of Military Justice, FindLaw, Cornell Law School
Legal analysis and criticism of the proposed military tribunals is available from the National Association of Criminal Defense Lawyers (NACDL) here. The draft of the rules released by Rumsfeld are here. Here are the principal NACDL objections, as contained in its report:

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.
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