USA — Panel Chosen for Sentencing Portion of Detainee Trial

NAVAL STATION GUANTANAMO BAY, Cuba, Feb. 16, 2011 — A mil­i­tary com­mis­sion pan­el of offi­cers made up of nine men and three women will deter­mine the sen­tence detainee Noor Uth­man Muhammed will serve after plead­ing guilty yes­ter­day to charges of con­spir­a­cy and sup­port­ing inter­na­tion­al ter­ror­ist groups, includ­ing al-Qai­da.
Fif­teen poten­tial pan­el mem­bers arrived here from mil­i­tary bases around the world, and Noor’s defense team object­ed to six of them, whit­tling their num­ber to nine. The pan­el must con­tain at least five mem­bers.

The mem­bers, whose iden­ti­ties the court pro­tects, include a male Army colonel who will act as pan­el pres­i­dent, a male Navy cap­tain, a female Air Force colonel, a male Air Force colonel, a male Air Force lieu­tenant colonel, a female Air Force cap­tain, a male Navy chief war­rant offi­cer, a male Army major and a male Army lieu­tenant colonel.

These ser­vice mem­bers will hear tes­ti­mo­ny over the next day or so before delib­er­at­ing and con­fer­ring a sen­tence in the sixth con­vic­tion pro­duced here by the com­mis­sion since 2002. “All six of our cas­es have been for­eign fight­ers who vio­lat­ed the laws of war over­seas in or near an oper­a­tional back­ground … where we have armed forces,” Navy Capt. David Igle­sias, a spokesman for the mil­i­tary com­mis­sion pros­e­cu­tors, told Amer­i­can Forces Press Ser­vice.

Mil­i­tary com­mis­sions have had nar­row juris­dic­tion, address­ing only for­eign nation­als -– called alien ene­my unpriv­i­leged bel­liger­ents — who vio­late the laws of war, said Igle­sias, him­self a pros­e­cu­tor and a for­mer U.S. attor­ney. Because of their lim­it­ed scope, he added, the mil­i­tary com­mis­sion is “look­ing only at a small uni­verse of 60 pos­si­ble cas­es among the 172 detainees” now being held at the deten­tion facil­i­ty here.

Unlike U.S. courts, the mil­i­tary com­mis­sion con­vened to pros­e­cute the government’s cas­es against some of the detainees held here has roots dat­ing back to the Amer­i­can Rev­o­lu­tion and long expe­ri­ence deal­ing with war crimes, Igle­sias said.

“The Jus­tice Depart­ment has a 35-year his­to­ry of try­ing ter­ror­ism cas­es, going back to the mid-1980s. It does not have a long his­to­ry of pros­e­cut­ing war crimes,” he said. “The U.S. mil­i­tary has a his­to­ry of pros­e­cut­ing war crimes going back to the Rev­o­lu­tion­ary War in the 1770s.”

Such laws have been cod­i­fied over time in doc­u­ments such as the Hague Con­ven­tions of 1899 and 1907, among the first for­mal state­ments of the laws of war and war crimes in inter­na­tion­al law, and in the Gene­va Con­ven­tion of 1949, Igle­sias said.

Among the cen­turies-old con­cepts are that fight­ers engage only with oth­er fight­ers and not with civil­ians or the sick or wound­ed, and that church­es, mosques, schools, hos­pi­tals and cul­tur­al cen­ters are pro­tect­ed places.

Ter­ror­ists don’t wear uni­forms that make them rec­og­niz­able from a fixed dis­tance, Igle­sias not­ed, and they don’t have a com­mand struc­ture in which one per­son is in charge of the duties of his or her men. “They don’t rec­og­nize the laws of war,” he added.

The last time the Unit­ed States con­vened mil­i­tary com­mis­sions was at the end of World War II, he said.

“We set up many com­mis­sions to try war crim­i­nals in the Euro­pean the­ater, most of whom were Nazi sol­diers, and in the Pacif­ic the­ater. And then there was 60 years of silence, until 9/11,” Igle­sias said.

Some crit­ics of mil­i­tary com­mis­sions com­plain that their legal require­ments didn’t stand up to those observed by civil­ian courts or the Uni­form Code of Mil­i­tary Jus­tice. That changed in 2009, Igle­sias said.

“There was a Mil­i­tary Com­mis­sions Act of 2006 that our lead­er­ship thought did not rep­re­sent the type of due process that we have his­tor­i­cal­ly rec­og­nized in this coun­try,” he acknowl­edged. The act was reformed and signed by Pres­i­dent Barack Oba­ma in 2009. Defense Sec­re­tary Robert M. Gates signed the fore­word to the revised rules.

The new act “gives greater rights to detainees and makes it more dif­fi­cult for either side to use hearsay evi­dence,” Igle­sias not­ed, but the new rules don’t make mil­i­tary com­mis­sions iden­ti­cal to try­ing a crim­i­nal case, he added.

In many cas­es, he explained, the government’s bur­den is much more dif­fi­cult because of the enor­mous amount of clas­si­fied infor­ma­tion that’s used in cas­es against war crim­i­nals.

There may be wit­ness­es over­seas that for­eign gov­ern­ments don’t want to pro­duce,” he said, “so there has to be a way for the gov­ern­ment to intro­duce evi­dence that in a nor­mal court would be pro­hib­it­ed.”

With that excep­tion, he added, there’s very lit­tle dif­fer­ence between a court-mar­tial case and a mil­i­tary com­mis­sions case. “How the cas­es are put togeth­er and pre­sent­ed in court are vir­tu­al­ly iden­ti­cal,” he said.

The revi­sion also reduced the time required to resolve cas­es, he said. The Noor case marks three cas­es resolved in six months. Under pre­vi­ous ver­sions of the law, only three cas­es were resolved from 2001 to 2008.

As a for­mer state pros­e­cu­tor, fed­er­al pros­e­cu­tor and mil­i­tary defense coun­sel, Igle­sias said, he believes “the Mil­i­tary Com­mis­sions Act of 2009 rep­re­sents the rule of law, it rep­re­sents due process, and it is a fair sys­tem that pro­tects the rights of the accused.”

U.S. Depart­ment of Defense
Office of the Assis­tant Sec­re­tary of Defense (Pub­lic Affairs)

More news and arti­cles can be found on Face­book and Twit­ter.

Fol­low on Face­book and/or on Twit­ter