The Military Commission: An Inauspicious beginning for a"Full and Fair " Process

This past week, Military Commission proceedings were “fired up” again in Guantanamo. In two cases, one against Canadian detainee Omar Khadr, the other against Yemeni detainee Ali Hamza Ahmad Sulayman al Bahlul, military defense lawyers confronted the challenge of dealing with a process long ago repudiated by the Uniform Code of Military Justice, and by all accounts distinguished themselves (see here). This move signaled the Bush administration’s determination to move forward with the Commission process. It also, however, highlighted why this tribunal has been the subject of widespread criticism.

In what must be considered an inauspicious beginning to a process the government continues to assert is “full and fair”, one detainee was initially denied his choice of detailed military defense counsel (see here), while the other detainee was forced to accept representation he did not want (see here). In the case against Khadr, the detailed military defense counsel was forced to essentially state he could not effectively represent his client in order to convince the Presiding Officer to grant his client’s request that a much more experienced Marine Corps attorney be detailed to the case. Only after relentless assertions of this position did the Presiding Officer finally relent, but only after subjecting the defense counsel to extensive criticism. In the case of al Bahlul, the Commission rejected his request to represent himself and ordered his detailed military defense counsel to continue to perform in that capacity (which itself raises significant ethical concerns).

This ironically inverse application of the customary standards related to selection of counsel raises serious questions about just how “full and fair” this process can be. It also exposes one of the most significant concerns members of the defense team have noted from the inception of this process – the power of the Commission Presiding Officer. These officers need not be detailed from the military trial judiciary (although to date the officers selected for these duties have been current or retired military judges). In both these cases, unlike courts-martial, it was not a military judge who was vested with the authority to rule on these requests, but the senior member of the Commission, the Presiding Officer (see here). While the duties of the Presiding Officer are similar to that of a military judge, their appointment by the same authority responsible for prosecuting detainees reflects a fundamental difference with the independent military trial judiciary.

Observers familiar with the pre-1951 revision of the U.S. military justice system (see here) might recognize similarities in this procedure. Prior to this date (when the Uniform Code of Military Justice was adopted by Congress), the senior member of a military court ruled on all legal and evidentiary issues. Instead of serving as a military judge, the legal officer was designated as a “law officer”, with the limited role of providing advice to the presiding lay members. With the procedural construct of the Military Commission reflecting what might best be described as a “hybrid” version of the old and modern military justice stystems, it seems worth recalling that one of the most significant changes in the military justice system made by Congress more than fifty years ago was the creation of a truly independent trial judiciary, providing an independent military judge vested with authority to make all legal rulings in a court-martial, none of which are subject to voting member “override” as is the case with the Commission.

While confronting a tribunal that lacks the legal and procedural guarantees traditionally associated with the modern military justice system is no doubt challenging enough, a basic inequity in resources is apparently compounding this challenge. The obvious imbalance between government and defense resources was exposed by the officer in charge of the Military Commission defense team (see here), who noted the nearly four to one ratio of prosecutors to defense counsel. While the government defended these numbers, it would certainly seem that a genuine commitment to a “full and fair” process would compel providing for a more robust defense capability. The mere fact that a senior military officer charged with supervising this function would take the unusual step of making his “request” through the media suggests that behind the scenes efforts to reinforce his team have been ineffective. This again reflects a fundamental divergence between the Commission process and our normal military justice practice, where equity between prosecution and defense resources is a cornerstone of legitimacy.

None of this is intended to suggest that the members of the Military Commission are not attempting to perform their duties properly. There should be little doubt that they realize the gravity of their responsibilities, and are attempting to execute those responsibilities to the best of their abilities. The more profound question is whether the procedural construct of this tribunal will disable their ability to provide the “full and fair” adjudication promised by the government. If this past week is an indicator, their challenge is significant.