Is it really necessary to sacrifice fair trial standards
to prosecute terrorism?


RICK WILSON

Professor of Law, American University's Washington College of Law

Since December of 2005, I have acted as counsel for Omar Khadr, one of the ten detainees at Guantánamo Bay in the process of trial by military commission, and one of the youngest detainees at Guantánamo, having been captured at age 15 in July of 2002. Omar will turn 20 in September of 2006. The Hamdan decision overturned the military commission system as originally designed. Those commissions were not adequate to protect even the most basic standards of a fair trial. There is no basis for lowering the bar for conviction in order to protect the United States from alleged terrorism.

In my view, the true purpose of the original system for military commissions was to assure that the accused received a less fair trial than one by court-martial or the standard criminal trial. Within the past several years, national military trials convicted Abdullah Öcalan, the leader of the PPK party representing Kurds in Turkey, and Abimael Guzman, the leader of Sendero Luminoso, the Shining Path, in Peru. Between the two of these alleged terrorists, tens of thousands of individuals died during the wars that they carried out domestically. In both cases, domestic military "terrorism" trials by ad hoc courts were found to be inadequate substitutes for available alternative civil processes. Both procedures and both convictions and sentences were found wanting by international tribunals sitting in review of their convictions. Both were granted retrials in which fair trial guarantees are honored. The U.S. has repeatedly condemned the use of military commissions in countries such as Burma, China, Colombia, Egypt, Kyrgyzstan, Malaysia, Nigeria, Russia, and Sudan. Emmanuel Decaux, a Special Rapporteur for the U.N. on the issue of the administration of justice through military trials, has said that military trials are never an appropriate substitute for the civil courts for the trial of children under the age of 18 at the time of their alleged misconduct.

While it is true that military commissions have been used in the U.S. since the Revolutionary War, they had been confined to use by necessity when the civil courts were not available. And the rules fashioned today are the same as those approved for use at the time of World War II, when notions of fair trial were quite primitive by comparison with what they are today, both domestically and internationally. At that time, there was no Gideon case protecting the right to counsel, and there was no Miranda decision protecting against improper interrogations. If we look at these military commissions against the provisions of Article 14 of the International Covenant on Civil and Political Rights (ICCPR) -- one of the most detailed baselines for a fair trial found in the provisions of a human rights treaty -- we can see that the commissions struck down in Hamdan violate virtually every provision, from independent and competent tribunal at the beginning to adequate avenues for review at the end.

In fact, a 2006 report by five U.N. rapporteurs concludes precisely that military commissions violate the fair trial provisions of Article 14. The report appropriately concludes by calling for the closing of Guantánamo.

Richard J. Wilson is Professor of Law and Director of the International Human Rights Law Clinic at American University's Washington College of Law. The above text was excerpted from his remarks at the AIUSA February 2006 conference "Fulfilling the Legacy: International Justice Sixty Years After Nuremberg". Read Prof. Wilson's full remarks: "Military Commissions in Guantánamo Bay: Giving 'Full and Fair Trial' a Bad Name".

 

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