Military commissions: A legacy of illegality and ineptitude

[Jefferson23]

The Obama administration's decision to reform the military commissions - rather than retire them - seems misguided.

Last Modified: 20 Apr 2013 12:08

The United States is now prosecuting some of the most important terrorism cases in its history in military commissions at Guantanamo Bay. More than a decade after their creation by the Bush administration, however, the commissions remain a legal experiment gone awry. The Obama administration's decision to reform the commissions - rather than retire them - seems increasingly misguided.

A federal appeals court has now rejected two key charges used by commission prosecutors - conspiracy and material support for terrorism - because they are not recognised as war crimes under international law. The chief prosecutor, Brigadier General Mark Martins, subsequently sought to withdraw conspiracy charges from pending cases, but the Convening Authority, which determines whether specific charges should be referred to trial by military commission, denied the request. The Obama administration, meanwhile, is seeking to overturn the appeals court's rulings, with Attorney General Eric Holder rejecting the recommendation from the Solicitor General not to proceed with a further appeal. As Martins recognises, proceeding with war crimes charges not sanctioned by international law undermines the commissions' legitimacy.

Recent events continue to reveal serious improprieties in the conduct of the trials. Last week, attorneys for Khalid Sheik Mohammed and the other 9/11 defendants sought to halt proceedings after learning that 500,000 internal defence emails had been seized and defence files had disappeared from computer servers. In their handwritten motion to the commission judge, defence attorneys stressed that the compromise of data undermines the right to the effective representation of counsel guaranteed by the Sixth Amendment to the Constitution and the Military Commissions Act.

The loss of defence files and seizure of internal defence emails are merely the latest examples of the commissions' enduring flaws. The sudden interruption earlier this year of the public feed from the military courtroom at Guantanamo exposed that a government agency - presumably the CIA - has the ability to secretly censor the feed of proceedings that the public and news media receive on a 40-second delay. The military judge, Army Col James L Pohl, claimed he had no knowledge of the external kill-switch and asserted that he alone has authority to limit public access.

http://www.aljazeera.com/indepth/opinion/2013/04/2013418114133206564.html

[bemildred]

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[Solly Mack]

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