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| Judge Advocate General School Commandant
General Scott Black said the military is sensitive to international
interest in how the Guantanamo cases are handled. |
Posted July 20, 2004
JAG Commandant Says Terror Detainees
Will Get Vigorous Defense
Once the trials of terror detainees held in Guantanamo Bay are underway,
Americans will be proud of the procedures set up to ensure that justice
is done, Judge Advocate General School Commandant General Scott Black
told a full house at the Miller Center’s Newman Pavilion July
19.
Meanwhile, Americans may be rightfully confused about where the authority
for the military commissions to try enemy combatants derives, he said.
Military courts-martial are established under Article I of the U.S.
Constitution, meaning their powers derive from the authority of Congress,
not the judiciary, which is described under Article III. But the military
commissions are set up under the president’s executive authority,
outlined in Article II, and so the public is not seeing the usual institutions
it expects in the administration of justice.
Nonetheless, the policies and procedures of the commissions are true
to American standards of justice, Black said. President Bush instructed
the commissions to conduct "full and fair" proceedings. The
Department of Defense then issued the following formal criteria for
fairness: presumption of innocence, proof beyond a reasonable doubt,
free military counsel provided, private counsel allowed at the defendant‘s
expense, the defendant can present evidence and faces no penalty for
declining to testify, and, finally, the defendant is entitled to an
appeal.
Black said the criteria were compared with standards in other major
industrial democracies and with the U.N. covenant on justice procedures,
which the United States ratified in 1992, and they were found to be "substantially
the same."
Detainees’ defense counsels, provided from the JAG ranks, are
expected to conduct "vigorous, zealous, and effective representation," Black
said. The officers chosen average 11 years of litigation experience
and come from each service. Most have handled dozens of court-martials,
very often vindicating their client. To convey how seriously defense
counsels take their responsibilities, Black mentioned that one officer
is going to Yemen to interview the detainee’s family and another
is preparing a legal challenge to the President’s authority to
create the commissions. Defense counsels are "focused on achieving
their clients’ objectives"—which is freedom, Black
said.
The president’s authority to set up commissions seems to be
confirmed by a 1942 Supreme Court ruling that approved of President
Franklin D. Roosevelt’s military commission trial of eight German
saboteurs captured on the New Jersey shore, Black said. American civilian
rights do not apply to military commissions, the court declared. From
1944-49, "thousands of enemy soldiers" were tried by commissions
set up in Germany, Japan, and the Philippines, Black noted, but we
are unfamiliar with their structure and are having to relearn how to
manage them.
Black said trials will not begin for at least six to 12 months as
defense counsels pursue petitions challenging the status and condition
of detainees in U.S. courts. The Supreme Court’s ruling last
month in the cases of Yaser Hamdi and Jose Padilla, terrorist suspects
who are American citizens but labeled enemy combatants, "sends
a tremendous signal to defense counsel that U.S. courts are open to
their use," Black said. Detainees are likely to be charged with
conspiracy to attack civilians and other war crimes, he said, predicting
that defense counsels will probably want six to 12 months to prepare
their cases.
A defendant charged under the Uniform Code of Military Justice actually
has more rights than defendants in federal courts because they get
free legal representation and can appear at grand jury hearings and
present and challenge evidence, Black said. In nonmilitary courts the
accused is not present for grand jury proceedings.
The military is sensitive to international interest in how the cases
are handled. "It’s not about being a measure of [the detainees],
but a measure of us," said Black. "I believe when the commissions
are underway and we have the first decisions, we, you and I, will be
able to take pride in the process and these commissions will be full
and fair."
• Reported by M. Marshall
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