EXECUTIVE WATCH

Today’s post is by guest contributor Scott L. Silliman

This Post was edited on Sunday, May 17, at the request of the author, to reflect the Administration’s announcement on Friday, May 15th as to the intended use of revised military commissions.

Upon taking office, President Barack Obama immediately suspended the military commissions at Guantanamo Bay to give his administration time to determine the best system to try detainees suspected of terrorism and violations of the laws of war. Up until the suspension, the commissions, authorized by the Military Commissions Act of 2006, had been criticized both domestically and internationally for not protecting the rights of detainees and for being overly politicized.

On Friday, the president announced he would be restarting military commissions but revising trial procedures to include a much greater measure of due process. The revised commission system will adhere more closely to the rules and modes of proof for courts-martial under the Uniform Code of Military Justice – the system we use to prosecute our own service personnel when they commit crimes. The president has chosen the best option.

Another widely discussed option, prosecuting detainees in our federal criminal courts, has inherent problems. Because the detainees would be entitled to full due process rights, their lengthy pretrial detention and the specific coercive conditions of that detention could pose significant legal challenges for the prosecution.

Further, the CIA has acknowledged that one of the alleged co-conspirators of the Sept. 11, 2001, attacks, Khalid Sheikh Mohammed, was waterboarded – raising questions about whether any of his statements or evidence derived from those statements would ever be admissible in legal proceedings. There are also considerable security risks surrounding federal criminal proceedings.

The court-martial system has several advantages. Due process rights in courts-martial are substantial and many mirror those in federal courts; for example, hearsay evidence is not admissible, nor are statements made under coercion.

But in contrast to the federal system, the Uniform Code system is portable and efficient; courts-martial can be quickly convened and held at any U.S. military facility in the world, thereby obviating the security risks of holding trials in this country.

A conviction, except for capital cases, requires only a two-thirds vote of the jury panel, just as in the current military commission system. Appeals are heard by a five-judge civilian court which, after close to 60 years, is clearly well-versed in military jurisprudence. And any U.S. military facility in the world can be designated as a place of confinement.

After the U.S. Supreme Court in 2006 struck down the first military commission system established by the Bush administration, Congress had the opportunity to create a system that closely adhered to the UCMJ model. I advised lawmakers to do so when I testified before the Senate in July 2006. But in the face of fierce lobbying by the Bush administration, Congress chose to deviate from that model in several key areas.

The president and Congress now have the opportunity to correct that error and establish a revised military commission system that follows court-martial rules and procedures in virtually every respect. A revised military commission system is the far better option for prosecuting those at Guantánamo Bay who allegedly committed crimes. Friday’s announcement is an indication that the administration intends to do just that.

Scott L. Silliman is a professor of the practice of law at Duke Law School and executive director of Duke’s Center on Law, Ethics and National Security. He served for 25 years as an Air Force judge advocate. His e-mail is silliman@law.duke.edu.