Guantanamo military commission

Travel to Guantanamo is onerous, and logistics once there are difficult. The military commissions courtroom gallery limits attendance to 52 seats. Moreover, GAO notes that "while selected victims and family members and non-government stakeholders are able to view proceedings in-person [at Guantanamo] the vast majority of the general public cannot, due to DOD policy."[8]

GAO noted that "victims and their family members are located throughout the world or are concentrated in areas of the United States that are a significant distance from one of these five locations." Moreover, some victims and family members reported that they or their relatives have been denied access to certain of the sites because, "according to DOD, they did not meet the department's definition of a victim or family member."[8]

By regulation, the Defense Department is supposed to post court documents on the Office of Military Commissions website generally no later than 15 business days after they have been filed in court. However, GAO found that "DOD has generally not met this standard for the timely posting of documents, which substantially limits public access to information about proceedings." A sampling of over 11,000 filings from a six-month period in 2018 showed that, save for unofficial court transcripts from open hearing, filings were not posted until "almost four months to more than five months past DOD's timeliness standard."[8]

Defense Department officials told GAO that "unlike most—if not all—federal criminal trials or courts-martial, commissions' court documents and proceedings regularly involve an unprecedented amount of classified information that cannot be shared with the public. For example, DOD officials told us that a substantial amount of evidence used in the commissions' proceedings relates to partially-classified activities conducted by intelligence agencies outside the department—such as the Central Intelligence Agency's former Rendition, Detention, and Interrogation Program."[8]

Consistent with GAO's findings, on August 4, 2021, 75 Members of Congress wrote to President Biden urging greater transparency in the military commissions process.

The United States has two parallel justice systems, with laws, statutes, precedents, rules of evidence, and paths for appeal. Under these justice systems, prisoners have certain rights. They have a right to know the evidence against them; they have a right to protect themselves against self-incrimination; they have a right to counsel; and they have a right to have the witnesses against them cross-examined.

The two parallel justice systems are the Judicial Branch of the U.S. Government, and a slightly streamlined justice system named the Uniform Code of Military Justice (UCMJ) for people under military jurisdiction. People undergoing a military court martial are entitled to the same basic rights as those in the civilian justice system.

The Guantanamo military trials under the 2006 MCA do not operate according to either system of justice. The differences include:

• Unlike civilian courts, only two-thirds of the jury needs to agree in order to convict someone under the military commission rules. This includes charges such as supporting terrorism, attempted murder, and murder.[9]
• The accused are not allowed access to all the evidence against them. The Presiding Officers are authorized to consider secret evidence which the accused have no opportunity to see or refute.[10]
• It may be possible for the commission to consider evidence that was extracted through coercive interrogation techniques before passage of the Detainee Treatment Act.[11] Legally, the commission is restricted from considering any evidence extracted by torture, as defined by the Department of Defense in 2006.[12]
• The proceedings may be closed at the discretion of the Presiding Officer, so that secret information may be discussed by the commission.[13]
• The accused are not permitted a free choice of attorneys, as they can use only military lawyers or those civilian attorneys eligible for the Secret security clearance.[14]
• Because the accused are charged as unlawful combatants (a certain category of people who are not classified as prisoners of war under the Geneva Conventions), then Secretary of Defense Donald Rumsfeld said in March 2002 that an acquittal on all charges by the commission is no guarantee of a release.

International human rights law prohibits trying non-military personnel in military tribunals. The United States has also never ratified the International Criminal Court statute, and withdrew its original signature of accession when it feared repercussions of the Iraq War.[15]

Much like the military commissions, the International Criminal Court (ICC) trial procedures call for:

• A majority of the three judges present, as triers of fact, may reach a decision, which must include a full and reasoned statement.[16] However, and unlike the U.S. Military Commission, those are judges and not mere military officers. Additionally, the ICC statute requires the judges to be of a high level of competence in criminal law and the necessary relevant experience; or have established competence in relevant areas of international law such as international humanitarian law and the law of human rights and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court.[17]
• Trials are supposed to be public, but proceedings are often closed, and such exceptions to a public trial have not been enumerated in detail.[18] Nonetheless, the ICC statute explicitly states that the principle is a public trial, and exceptions could be entertained by the judges if they provide sufficient grounding.[17]
• In camera proceedings are allowed for protection of witnesses or defendants as well as for confidential or sensitive evidence.[19] However, the statute states that this is an exception to the principle of public hearings which the court applies in particular to victims of sexual violence and children who are victims or witnesses.[17]
• Hearsay and other indirect evidence is not explicitly prohibited in the statute, which adds flexibility to the proceedings due to the different legal traditions of the judges or of the applied law. But it has been argued the court is guided by hearsay exceptions which are prominent in common law systems,[20] similar to the military commissions.[21] Nonetheless, established rules of international law provides that admissibility of such evidence by guided by "hearsay exceptions generally recognized by some national legal systems, as well as the truthfulness, voluntariness and trustworthiness of the evidence." [16]