The BBC “The World” (radio broadcast) has reported that ICC Chief Prosecutor Luis Moreno-Ocampo will begin filing indictments against several top Sudanese Government officials next month, accusing the entire government of playing a role in crimes against civilians in Darfur.
To date the highest level official to be indicted is Ahmed Muhammed Haroon, former Interior Minister. Rather than surrender Haroon, the Sudanese regime promoted him to Minister for Humanitarian Affairs, where he was placed in charge of the very refugees that he and his troops had assaulted and terrorized.
The BBC “The World” (radio broadcast) has reported that ICC Chief Prosecutor Luis Moreno-Ocampo will begin filing indictments against several top Sudanese Government officials next month, accusing the entire government of playing a role in crimes against civilians in Darfur.
To date the highest level official to be indicted is Ahmed Muhammed Haroon, former Interior Minister. Rather than surrender Haroon, the Sudanese regime promoted him to Minister for Humanitarian Affairs, where he was placed in charge of the very refugees that he and his troops had assaulted and terrorized.
The Appeals Chamber of the Special Court for Sierra Leone recently ruled that forced marriage is a new category of crime against humanity, reversing the Trial Chamber’s determination that forced marriage was not distinct from the previously recognized crimes against humanity of rape, forced prostitution, and sexual slavery.
“What had occurred here with forced marriage was something very serious and very specific, and wasn’t fully recognized,” Stephen Rapp, the chief prosecutor at the Special Court for Sierra Leone, told the Christian Science Monitor last week. “It was part of a widespread attack against civilians. Women were being taken as wives without consent, either consent by them … or by family members.” See http://www.csmonitor.com/2008/0610/p06s01-woaf.html
The court’s first rulings on the charges, brought against three members of the notorious Revolutionary United Front, are expected in July.The decision paves the way for similar charges in northern Uganda and the Democratic Republic of Congo, where rights groups have documented the use of bush wives in ongoing conflicts.
In arguing the case for recognizing forced marriage as a new category of crime against humanity, the Prosecutor of the Special Court for Sierra Leone utilized a memorandum prepared by the Case Western Reserve University School of Law War Crimes Research Office, which I direct.The memo was subsequently published as Michael P. Scharf and Suzanne Matler, Forced Marriage: Exploring the Viability of the Special Court for Sierra Leone’s New CrimeAgainst Humanity, Volume 3 of the Africa Legal Aid Special Book Series:“African Perspectives on International Criminal Justice” (2005), the text of which is available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=824291 .
On June 24, 2007, the Iraqi High Tribunal handed down its decision in the Anfal Campaign trial, convicting “Chemical Ali” (Ali Hassan al-Majid) and five other high ranking military leaders of the former Iraqi Regime of international crimes related to their roles in a 1980s crackdown against northern Iraqi Kurds (English version of Judgment available at http://law.case.edu/grotian-moment-blog/anfal/opinion.asp . On Tuesday, January 29, 2008, Case Western Reserve University School of Law hosted a two-hour live presentation by the President/Chief Appeals Judge of the Iraqi High Tribunal, the five judges who presided over the Anfal Campaign trial, and the Prosecutor who tried the case. This trip to the United States marked their first public appearance outside of Iraq. Through a translator, the Judges and Prosecutor discussed the challenges that they faced, the precedent that their historic judgment sets, and the question of whether the proceedings were fair. They also discussed the controversy surrounding the pending execution of “Chemical Ali” — an issue that has been front page news this week. To view the transcript of this extraordinary session (including Q&A) on the Grotian Moment Blog, click on: http://law.case.edu/grotian-moment-blog/content.asp?t=1&id=141
Murder, attempted murder, material support, conspiracy and spying are the charges against Omar Khadr who recently faced a military commission which heard challenges to its jurisdiction. I’ve previously blogged in detail about those charges here. As I’ve previously noted, Khadr comes from a dedicated al Qaeda family, with a family tradition of terrorism. Abdurahman Khadr, Omar’s brother boldly stated “I admit it that we are an al-Qaeda family. We had connections to al-Qaeda.” and later revealed that he had been “raised to become a suicide bomber.”
Khadr’s father Ahmad was killed in a targeted missile strike(others say in a shootout) in Pakistan. Prior to his death, Ahmad Khadr was a long time member of al Qaeda and rose to the highest levels of the al Qaeda terrorist network, commanding a region of Logar per the direct orders of Osama Bin Laden. Ahmad Khadr contributed to al Qaeda in the form of financial support and personnel assistance to further the organization’s international terrorism objectives. In particular, he encouraged his sons to join al Qaed and to carry out its work. The recently released “Book of 120 Martyrs” an al Qaeda recruiting tool states that Khadr married a Palestinian who “shared with him his march to jihad, and Allah granted them several sons who shared this long, tiresome march with him.” Omar Khadr heeded his father’s call.
Omar Khadr and his family made yearly trips to the bin Laden compound in Jalalabad Afghanistan, meeting with bin Laden, Al-Zawahiri, and other senior leaders. Khadr, not only met with senior leadership, he also attended various training camps learning the tradecraft of an international terrorist. He was trained to use rocket propelled grenades, rifles, pistols, hand grenades and explosives. He is alleged to have put his skills to use converting land mines to IED’s, planting IED’s along U.S. military routes of travel, and conducting surveillance against U.S. forces in preparation for future attacks.
In fact recently released footage shows Khadr making and emplacing an IED.
Also, footage from Iraq, gives us an idea of the other type of al Qaeda training which Khadr was likely to have gone through (Hat tip to BlackFive). That training shows children learning kidnapping and assasination, the type of conduct for which we wouldn’t hesitate to try a minor as an adult for in a domestic court.
Of course as readers know, Khadr concluded his al Qaeda tour of duty in a firefight on July 27, 2002, where he threw a grenade killing Sergeant First Class Christopher Speer of the 3rd Special Forces Group and partially blinding Sergeant First Class Layne Morris. In the firefight Khadr was shot four times by U.S. forces who then stepped over the bodies of their comrades to save his life. He was detained, provided medical treatment and sent to Guantanamo.
Khadr’s attorney’s make the argument that he was entitled to kill Sergeant Speer because Speer was a lawful target, and Khadr’s actions were not a war crime at the time he commited them. Furthemore, Defense lawyers and a UN representative have argued that if the U.S. tries Khadr, it will be a violation of the Optional Protocol to the UN Convention on the Rights of the Child, points which Colonel Davis, the former Chief Prosecutor took issue with in the comments here. Davis states:
1) The issue the protocol and lists of countries stating opposition to the recruitment of child soldiers does not speak to their conduct, it speaks to bans on recruitment.
2) Article 37(a) of the Convention on the Rights of the Child places limits on punishment, not prosecution.
3) The U.N. sanctioned Special Court for Sierra Leone’s Statue in Article 7 allowed for jurisdiction over persons 15 years of age.
After the conclusion of the Saddam Hussein trial, which was perhaps the messiest trial in legal history, I was invited by Luis Moreno-Ocampo, the Prosecutor of the International Criminal Court, to make a presentation to his staff about the best ways an international criminal court can maintain control of a war crimes trial in the face of a defendant or defense counsel who seeks to disrupt the proceedings. I subsequently was invited to speak about this important issue to the judges and prosecutors of the Rwanda Tribunal and Cambodia Tribunal. The text of my presentation is available on the ICC’s website: http://www.icc-cpi.int/otp/otp_guest_lectures.html and has subsequently been published as: Michael P. Scharf, Chaos in the Courtroom: Controlling Disruptive Defendants and Contumacious Counsel in War Crimes Trials, 39 Case Western Reserve Journal of International Law 155-170 (2007).
Because of the political context and widespread publicity, former leaders on trial such as Charles Taylor, Saddam Hussein, Slobodan Milosevic, and Vojislav Seselj, are more likely than ordinary defendants to perceive that they do not stand a chance of obtaining an acquittal by playing by the rules. Instead, such individuals will often attempt to derail the proceedings, hoping for a negotiated solution such as a pardon or amnesty. They may try to hijack the trial, hoping to transform themselves through their political diatribes into heroic martyrs in the eyes of their followers. And at the same time, they may seek to discredit the tribunal, hoping to provoke the judges into inappropriately harsh responses which will make the process appear patently unfair. For this reason, major war crimes trials are often perceived as extremely messy or worse, completely out of control. When the Charles Taylor trial began last summer, there were indications that it would follow that pattern, as Taylor made inflammatory speeches, fired his lawyer, and sought to represent himself at the trial’s first session.
As Robert Jackson, the Chief Prosecutor at the Nuremberg trial, observed sixty years ago, war crimes trials, whether before international tribunals or domestic courts, seek to establish a credible historic record of abuses and elevate the rule of law over the force of might, thereby facilitating the restoration of peace and the transition to democracy. While tolerating dissent is a healthy manifestation of a democratic government, a courtroom is not an arena in which dissension, particularly of a disruptive nature, may supplant, or even take precedence over, the task of administering justice. Unlike other forms of acceptable political expression, a disruptive defendant or defense lawyer who interferes with the “grandeur of court procedure” (as Hannah Arendt once described the judicial process) threatens the proper administration of criminal justice in several fundamental ways. First, disruptive conduct renders it more difficult for the defendant and any co-defendants to obtain a fair trial. Second, it hampers the court’s ability to facilitate the testimony of victims and other witnesses. And third, it undermines the public’s confidence in and respect for the legal process.
With this in mind, the Special Court for Sierra Leone wisely held in Prosecutor v. Norman (2005) that the defendant’s right to employ disruptive tactics which seek to discredit the judicial process must give way to the tribunal’s obligation to protect “the integrity of the proceedings” and “to ensure that the administration of justice is not brought into disrepute.” Following the recipe outlined in my presentation/article, the Special Court for Sierra Leone has taken appropriate actions to make sure that the Charles Taylor trial avoids the missteps of the messy war crimes trials of the past. For example, the Tribunal has required that Taylor be represented by counsel, rather than allow him to use self-representation to turn the trial into a circus. And it has provided Taylor and his counsel detailed warnings of the incremental and calibrated Judicial responses they can expect to encounter if they engage in disruptive conduct.
Based on my impressions from watching the live feed of the Taylor trial at http://www.sc-sl.org/ it appears that the Tribunal has succeeded. Defendant Charles Taylor is behaving himself quite admirably in the courtroom, and at the same time is taking a constructive part in his own defense. He is seen constantly writing and often passing sticky notes to his lawyer, Courtenay Griffiths, who uses them during cross-examination. Taylor stands respectfully when the judges enter the courtroom, and has done nothing remotely disruptive - though his very presence is of course intimidating to witnesses who fear for their lives and are under the heaviest security imaginable. The press made a big deal that Taylor blew a kiss to his daughter sitting in the public gallery viewing to the trial on the first day, and he occasionally stares people down in the public gallery, but for the most part he seems to be quietly paying attention to what’s going on in the court.
Taylor’s new legal team has been doing an impressive job. British Barrister Courtenay Griffiths is quite tough on the witness, he grandstands from time to time, he tries to induce the witnesses into making exculpatory statements about his client, and he does his best to generate inconsistencies in their stories — basically he’s doing exactly what an outstanding defense attorney should be doing, which in turn bumps up the credibility of the entire process. The Taylor trial is animated - but within the ground rules of the court. This is a far cry from the Milosevic, Seselj and Saddam Trials, where the defendants and their counsel regularly disparaged the judges, interrupted witness testimony with outbursts, turned cross-examination into political diatribes, and staged frequent walk-outs, hunger strikes, and boycotts. It remains to be seen whether things will continue to go so well, but for now it does appear that the SCSL has learned from the lessons of the past and is setting a good precedent for the future.
Anfal Judges to Speak at Case Western on January 29, 2008
On June 24, 2007, the Iraqi High Tribunal convicted “Chemical Ali” (Ali Hassan al-Majid) and five other military leaders of Saddam Hussein’s regime of international crimes related to their roles in a three-year crackdown of northern Iraqi Kurds known as the Anfal campaign. The Tribunal’s judgment marks one of the only times in history individuals have been convicted of genocide - the worst crime known to humankind.
The Iraqi High Tribunal and the US Regime Crimes Liaison Office (RCLO) have provided Case Western Reserve University the just-completed English translation of the Anfal Trial Judgment for us to post on our award-winning Grotian Moment Website: <http://law.case.edu/grotian-moment-blog/ . This is the only place in the world where researchers can read the English translation of the historic opinion, whose 900 pages detail the legal and factual conclusions of the Tribunal. Note, at the request of RCLO all witness/victim/family names have been redacted for their safety.
The judges who presided over the Anfal trial will be making a live presentation at Case Western Reserve University School of Law at 4:00 pm on January 29, 2008. Through translators, the judges and other officers of the Iraqi High Tribunal will discuss the challenges faced, the precedent that their historic judgment set and the question of fairness in the proceedings.
This trip, which also includes stops at American University and Vanderbilt, will mark the judges’ first public appearance outside of Iraq. A transcript of the January 29 session will be posted on the “Grotian Moment” website after the event.
This program is part of the law school’s year-long series to commemorate the 60th anniversary of the Genocide Convention, which has included a day-long symposium on September 28 that featured Robert Petit, Chief Prosecutor of the Cambodian Genocide Tribunal; the October 16 Cox Center Humanitarian Award Lecture by Luis Moreno-Ocampo, Chief Prosecutor of the International Criminal Court, and the January 15 Klatsky Human Rights Lecture by Yale Law Professor W. Michael Reisman. The webcasts of those events are available for viewing on demand at: http://law.case.edu/lectures.
The law school provides research assistance to five war crimes tribunals, including the Iraqi High Tribunal, and has a special program in which students spend a semester interning at the international tribunals. Currently, third-year law student Brianne Draffin (Editor in Chief of War Crimes Prosecution Watch) is serving as a judicial clerk/intern to the judges of the Sierra Leone Tribunal who are presiding over the trial of former Liberian President Charles Taylor.
On Wednesday, December 5, 2007, the US Supreme Court will hear argument in Boumediene v. Bush, challenging whether the Military Commissions Act of 2006 validly stripped federal habeas jurisdiction over Petitioners imprisoned at the United States detention facility at Guantanamo Bay, and whether Petitioners’ indefinite military imprisonment as “enemy combatants” lacks Congressional authorization and violates due process.
Since January 2002, the United States has held nearly 800 people, from more than 40 countries, in military custody at the U.S. Naval Base at Guantanamo Bay, Cuba. Some of those detained at Guantanamo were taken into custody during the war in Afghanistan. Others, including the petitioners in the Boumediene case, were captured in places far from any battlefield, including Bosnia, Gambia and Thailand. About 385 detainees remain at Guantanamo today. In June 2004, the Supreme Court decided Rasul v. Bush, 542 U.S. 466 (2004), holding that individuals detained at Guantanamo have a right to judicial review of the legality of their detention in U.S. courts. Two years later, in June 2006, the Supreme Court decided Hamdan v. Rumsfeld, 542 U.S. 507 (2006), holding that the military commissions set up by the Bush Administration to try the detainees at Guananamo Bay lack “the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the Geneva Conventions.
“I understand that some in this room may favor the idea of responding to Hamdan by enacting legislation that would simply give Congressional authorization to the President’s existing Military Commission system without changing a thing. It is true that for purposes of domestic law, Congress can override the requirements of the 1949 Geneva Conventions if it enacts a later-in-time statute that manifests a clear intent to violate the provisions of these venerable international humanitarian law treaties, to which the United States is a ratifying party. See Breard v. Greene, 523 U.S. 371 (1998). However, Congress has always been extremely reluctant to use this power, as it renders the United States in breach of its international obligations with often serious international legal and diplomatic consequences. Do we really want to be the only country in the world to go on record as abrogating the Geneva Conventions? Since the United States military is more forward-deployed than all other nations combined, strict adherence to the Geneva Conventions is more important to us than any other nation. Since the United States is a world leader, our practice is followed by other nations. If we try detainees in violation of internationally-required fair trial procedures, we increase the risk that our own troops and those of our allies (such as Israel) will be subject to similar mistreatment at the hands of others. And if by approving departure from the requirements of the Geneva Conventions, Congress is perceived as expressing disdain for some of the most important treaties of the international system, it will seriously complicate our diplomatic efforts to solve the Lebanon crisis, to eventually withdraw from Iraq, and to maintain support for our efforts to suppress terrorism worldwide. ”
A few months later, on October 17, 2006, the Military Commissions Act (MCA), was signed into law. On the one hand, I was relieved to see that the MCA does not on its face disavow or abrogate the Geneva Conventions. In fact, the Act declares that the military commissions created under the act are in full compliance with the Geneva Conventions (though many experts including this writer believe the military commission procedures are not in fact consistent with what is required by the Geneva Conventions). On the other hand, the Act provides that no one tried under the military commissions may invoke the Geneva Conventions as a source of rights, and it purports to strip detainees deemed to be “unlawful enemy combatants” of the opportunity to challenge their detention or their trial before the military commissions in U.S. courts.
On November 1, 2006, counsel for Guantanamo detainees in Boumediene v. Bush, and Al Odah v. United States, two related cases, filed legal briefs in the D.C. federal appeals court challenging the habeas stripping provision (among other grounds). In February 2007, the D.C. federal appeals court rejected the detainees’ arguments that the MCA provision was unconstitutional. The Guantanamo detainees appealed the court’s decision to the U.S. Supreme Court, which denied certiorari (declined to hear the appeal) on April 2, 2007. In an unusual move, however, the Supreme Court reversed that decision on June 29, 2007. The case, which will be argued this week, will decide whether Petitioners-and all other Guantanamo detainees-have meaningful access to the courts to challenge their imprisonment. The Briefs for the Petitioners, the US Government, and Amicus are available at: http://www.wilmerhale.com/boumediene/
Amos Guiora will be among a group of experts being interviewed tomorrow, December 3, 2007 on the use of third-world contractors in Iraq. The interview can be heard live on KUER 90.1, a public radio station licensed to the University of Utah in Salt Lake City. The program is also distributed by PRI on XM Public Radio Channel 133 at 11:00 a.m. Mountain / 1:00 p.m. Eastern and repeated at 7:00 p.m. on KUER 90.1
The interview profiles the following article written by Matt LaPlante which appears in today’s Salt Lake Tribune.
Human rights, safety at issue in exporting security
By Matthew B. LaPlante
Salt Lake Tribune
Mario Urquia’s story is backed up by passport stamps, a voided visa, photographs, contracts, personal letters, military documents, Honduran government officials, an American attorney and Honduran news reports.
But perhaps most significantly, his complaints are consistent with the results of a recent investigation of the billion-dollar security contracting industry by the United Nations Working Group on the Use of Mercenaries, which has exposed systemic abuses among security contractors and subcontractors who recruit in third-world nations.
According to a report issued last year, the U.N. group found “irregularities of contracts, harsh working conditions with excessive working hours, partial or non payment of remuneration, ill-treatment and isolation, and lack of basic necessities such as medical treatment and sanitation,” among security recruits from Honduras who took jobs in Iraq. The group made similar findings regarding workers from Chile, Peru, Ecuador and Fiji all nations with rampant poverty in which U.S.-based private security companies regularly recruit and has received similar reports of abuses in more than a dozen other countries.
José Luis Gómez del Prado, the Spanish expert who heads the U.N. group, said investigators “found the same things in all these countries. There is a series of military and private security companies that obtain a contract from the Pentagon or the State
Department of the United States and then subcontract other companies which go to third world countries because the workforce is cheaper.”
Gómez del Prado said the system has little oversight and is rife with abuse.
But the bottom line, he added, is that the contractors “are civilians who have guns in a war zone and that goes against international laws.”
The United States is not a signatory on the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, but it nonetheless has been resistent to call members of its private army “mercenaries.”
The U.S. State Department uses private security contractors to augment small detachments of U.S. Marines at embassies around the world. The department declined to respond to questions regarding the legal and ethical propriety of using workers from impoverished countries in its warzone facilities.
But the U.S. Mission to U.N. offices in Geneva disputes Gómez del Prado’s conclusion that the hiring of third-world security contractors constitutes “a new form of mercenary activity.”
“Accusations that U.S. government-contracted security guards, of whatever nationality, are mercenaries is inaccurate and demeaning to men and women who put their lives on the line to protect people and facilities every day,” an October statement from the mission said.
But as the U.S. and U.N. officials parse words, the extent of the exploitation continues to be overlooked, said Jen Daskal, who studies the policies and conduct of the U.S. military for the nonprofit Human Rights Watch.
No matter what terminology is used, Daskal said, “there’s a complete lack of oversight in terms of how contractors find, pay and treat their employees when they’re hired.
Daskal called the issue “a huge problem,” but said no one in the U.S. Government seems to want to do anything about it. “There appears to be a lack of political will,” she said.
With growing scrutiny in the wake of a number of high-profile incidents involving private security companies in Iraq, Daskal is hopeful that legislation aimed at making individual contractors easier to prosecute when they commit criminal acts might, as a tertiary consequence, also bring the force of U.S. labor regulations over the process.
That, she said, might help end the most egregious abuses including some reported cases, like Urquia’s, in which “people are basically taken into indentured servitude.”
But no pending legislation would stop companies such as Blackwater, DynCorp and Triple Canopy those three security companies alone have taken in more than $2.5 billion in contracts in Iraq from recruiting workers from poor countries to risk their lives for a few dollars a day. Of that, Daskal said, “there’s nothing that has any momentum going forward right now. There’s very little outcry or even knowledge of what’s going on over there.²
That deeply concerns Amos Guiora. The national security expert, a professor at the University of Utah’s S.J. Quinney School of Law, said all Americans should be concerned with “who is fighting our battles.” He wonders what message the United States sends about its intentions and commitments overseas when such a large part of its foreign-deployed forces aren’t even Americans. And notwithstanding the obvious human rights issues, he said, there is a very clear question as to the risks the U.S. government is taking by exporting its security to the lowest bidder.
If a mercenary from Honduras will man a guard tower for the United States for $31 a day, Guiora wondered, what would he do for $32?
“When you look at the tactical, geo-strategic and geo-political risks,” he said, “from all perspectives, it¹s lose, lose, lose.”
— mlaplante@sltrib.com
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In a frank interview with the Canadian television program “The Verdict” Colonel Morriss Davis, the former Chief Prosecutor for the Department of Defense Office of Military Commissions offers his insight into the process and the reason why he resigned from his post as Chief Prosecutor (full disclosure, I worked with Colonel Davis on research issues related to the prosecutions).
Here are some of the highlights:
COL. DAVIS: “I resigned recently because of what I considered political pressure which I deemed unacceptable…the military judge says he took heat for his decisions, I can attest to that on my side as well…for me it got to the point where I felt the politicization of the process had taken control so I resigned. We have the tools to do it right if you could get a couple of people out of the process.”
INTERVIEWER: “Can you let us have some idea where this [poltical] heat comes from?”
COL. DAVIS: “Primarily from the Dept. of Defense General Counsel, a gentleman by the name of Jim Haynes. Mr. Haynes is a political appointee, he had been nominated by the President for a seat on the the 4th Circuit Court of Appeals, but because of his involvement in the torture memo and torture policy his nomination died. In October Mr. Haynes became part of my chain of command…that’s when I said ‘enough is enough’ and I quit.”
INTERVIEWER: [Regarding the Khadr Case] Why is this taking so long?
COL. DAVIS: “I put most of the blame at the feet of Jim Haynes. This is supposed to be a military commission…if they trusted folks in uniform to do this right, I think we’d be halfway finished with all these trials by now. But they don’t trust the military. The political appointees want to control the process, they don’t trust the military to do it right…folks in uniform have done their best to bring integrity to this process…”
INTERVIEWER: Some say Khadr is a child soldier, why isn’t he treated as a child soldier?
COL. DAVIS: “…because he is not. If you look at the Convention on the Rights of the Child, Article 37 talks about the prosecution of individuals under the age of 18. They can be prosecuted but they can’t be sentenced to death or confinement for life…The definition of a child soldier is one who has not yet attained the age of 15, Omar Khadr was 15 years and 10 months old when we captured him on the battlefield.”
I’ve blogged previously about the type of issues that Col. Davis raises. What seems apparent to me, is that the military has consistently raised procedural concerns that have fallen on deaf political ears. The only type of influence actors in the Executive branch seem to want to exert is that of control of the process. When given the opportunity to use their influence to clear procedural hurdles and keep the process on track they’ve failed to act.
Examples of the failure to act abound, for example a good use of Executive influence would be to clear procedural deficiencies such as those regarding: the jurisdictional predicate made by the C.S.R.T. (which could have been resolved months earlier by changing the “Wolfowitz memo,” but which instead wound its way all the way to the D.C. Circuit); resolving whether the Deputy Secretary of Defense properly constituted the appeals panel (which could have been corrected by a memorandum, but instead had to wind its way through the appeals court); eliminating the requirement that the panel make a sentencing determination when a plea had already been worked out which would supercede any panel determination (instead a panel was constituted and flown down to Guantanamo to make a determination on a sentence that had already been agreed to and finalized); clearing unecessarily classified information for use at trial; eliminating the Appointing Authority’s Legal Advisor’s influence from the process (which creates the perception that an objective check designed to analyze whether charges are sufficient instead appears to be a political process designed to direct the prosecution team regarding what cases they should bring.)
If the military commissions are really the centerpiece of the administration’s counterterrorism policy (or at least a key part of it), they certainly have not done a good job ensuring the success of the commissions. Repeatedly in the “war on terrorism” we’ve found uniformed officers taking a principled stance on legal issues, only to be consistently thwarted by political appointees, the Davis interview highlights that this unfortunate practice is continuing today. The question of course, is what to do? Revoking the MCA doesn’t seem in the cards, but certainly some more oversight on the part of Congress would be necessary and appropriate. Undue command influence is a serious issue, it is a prime feature in the M.C.A. & U.C.M.J., and bears directly on Congressional responsibility to regulate the military– if Congress wants to have an impact, perhaps they should look into these command influence issues.
The AIDP is the oldest association of criminal law specialists in the world and one of the oldest scientific associations. This blog serves as a discussion site for all things law, with a focus upon criminal law, comparative criminal justice, international criminal law, international humanitarian law, war crimes, international criminal tribunals, human rights and counterterrorism law & policy.
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