Military Commissions

US Supreme Court and Military Commissions
By Taimur Malik

Guantanamo Bay military commissions constituted for the trail of the detainees have continued to come under heavy world criticism for the past many years. The US Supreme Court delivered its much awaited verdict on the legality of trials under military commissions on June 29 and took the bold step of sidelining the abridged model of justice manifested through them. The verdict repudiates the military commissions and declares that they violate both US law and the Geneva Conventions.

Guantanamo Bay military commissions can be viewed as an exception to the general rule namely the respect for the international rule of law that is reflective of the desire of the majority of the international community. Alternatively, they can be viewed as the setting of a dangerous precedent by the sole superpower in the world in its unique war against a hidden enemy. It is this later aspect that is deeply troubling.

This article is structured around discussing the following: legal flaws in the military commissions in terms of their constitution and within the context of the June 29 verdict of the US Supreme Court and international humanitarian law (IHL). The article also concludes with the cumulative effect of military commissions in unsettling some crucial rules and principles of international law.

Military commissions were created by a November 13, 2001 Military Order issued by President Bush, which authorized the trial of persons suspected of terrorism. The U.S. Department of Defence has issued a series of orders and instructions governing most aspects of the military commissions. These include crimes to be prosecuted, rules governing defence counsel and appellate review. Imperative as they as they may be, these provisions compromise justice and fairness and fall short of guaranteeing rights available to the accused in national and international courts.

To name a few, military commissions are immune from review by an independent court. Review, if any, is limited to a few legal issues. This aspect compromises on the principle of separation of the judiciary from the executive.

The military commissions also impose restrictions on attorney-client privilege. The ability to communicate unequivocally with one's attorney is intrinsic in the right to counsel. On the contrary, communications between the attorneys and clients are monitored for security and intelligence purposes.

In certain circumstances, the accused may not see classified or protected information that is used against him. Moreover, if the defendant has military counsel assigned, he is not allowed to discuss protected evidence with his client, which in turn prevents the accused from confronting the evidence against him-the denial of another fundamental trial right.