U.S. MILITARY COMMISSIONS: FAIR TRIALS AND JUSTICE
By William H. Taft IV

[The author is the Legal Adviser of the U.S. Department of State. He
served previously as the General Counsel of the Department of Defense
and Deputy Secretary of Defense under President Ronald Reagan and as
U.S. Ambassador to NATO under President George Bush.]

Since September 11, the world community has committed itself to
bringing those responsible for the attacks on the World Trade Center
and the Pentagon to justice. The United Nations Security Council has
called upon all States to hold accountable those persons who aided,
supported or harbored the perpetrators, organizers or sponsors of
those terrible crimes. This is a multilateral battle for
accountability and justice as well as a fight for the security of our
people and our fundamental values. Like other nations, the United
States has been taking steps to bring the 9/11 terrorists and their
supporters to justice. Just last week, the Department of Defense
issued rules and regulations that will govern the conduct of the
military commissions that may be established to try persons accused of
violations of the laws of war. Last November, President Bush set out
the framework for such judicial bodies based upon their long history
and basis under U.S. law. He noted that such commissions would provide
the U.S. Government a potentially useful option to bring suspected
terrorists to justice. The international community now knows how such
tribunals would operate.

In preparing the procedures for the military commissions, the U.S.
government has been well aware of various concerns that have been
expressed regarding the treatment of persons who may be referred for
trial as well as the need to assure that determinations of guilt or
innocence are made promptly, after consideration of relevant evidence,
and without jeopardizing the personal safety of witnesses, jurors, and
others involved in the process.

Over the last fifty years, the U.S. military and Congress have worked
strenuously to fashion through the Uniform Code of Military Justice a
model judicial system designed to try American military personnel for
their alleged crimes. The military justice system today produces just
outcomes and provides defendants with all the basic due process
protections found in civilian criminal proceedings. It has earned a
reputation among observers and practitioners as one of the fairest
systems in the world. The Uniform Code itself expressly recognizes
that military commissions have jurisdiction over violations of the
laws and customs of war, and the United States has consistently used
such commissions to try enemy combatants for such violations. As with
the evolution of courts-martial procedures, the Pentagon's recently
released Military Commission Order represents a significant advance in
military commission procedures.

Military commissions have a well-established place in international
law and practice. The Third Geneva Convention on the Protection of
Prisoners of War, for example, presumes that POWs "shall be tried only
by a military court," which has often been a military commission, and
authorizes trials in civilian courts in certain instances. Nations as
diverse as the Philippines, Australia, China, The Netherlands, France,
Poland, Canada, Norway, and the United Kingdom have prosecuted war
criminals in military commissions, to name just a few. The United
States used military commissions as far back as 1780, during the
American Revolutionary War, and again during and after the
Mexican-American War, the American Civil War, and World War II.
European States made similar use of military commissions in
19th-century conflicts and even more extensively in the 20th century.
In fact, the Allies relied heavily upon military commissions to
prosecute war criminals following World War II for the reason that
their procedures are easily adapted to the special needs of such
cases.

The military commission regulations just issued are consistent with
this tradition and ensure that the conduct of U.S. military
commissions will provide the fundamental protections found in
international law. Indeed, in a number of respects the procedures
represent improvements on past practice. In preparing the procedures,
the Pentagon not only listened carefully but also took into account
the constructive advice and concerns raised by other governments and
the non-governmental community.

The procedures offer essential guarantees of independence and
impartiality and afford the accused the protections and means of
defense recognized by international law. They provide, in particular,
protections consistent with those set out in the 1949 Geneva
Conventions, the customary principles found in Article 75 (Fundamental
Guarantees) of Additional Protocol I to the Geneva Conventions, and
the International Covenant on Civil and Political Rights. Even though
many of these specific provisions may not be legally required under
international law, the military commission procedures nevertheless
comport with all of them.

For example, the Pentagon's procedures provide: a fair and public
hearing, the presumption of innocence, the highest standard of proof
beyond a reasonable doubt, the choice of both military and civilian
counsel, adequate time and facilities to prepare for trial, the
ability to be present at one's own trial (subject only to exceptional
national security concerns, although defense counsel could be
present), the ability to present a defense (including the right to
examine and call witnesses), protection against self-incrimination, a
requirement that guilty verdicts be unanimous in capital cases, and
automatic review by a higher tribunal to which civilians may be
appointed.

As noted, the procedures call for public hearings. By providing for
closed proceedings when necessary, the regulations also assure that
the accused may be brought to justice without risking the safety or
security of victims and witnesses. In this respect, as in others, the
regulations are similar to the rules of the International Criminal
Tribunals for the Former Yugoslavia and Rwanda, both of which provide
that proceedings may be closed to the public on the basis of "public
order or morality," the "safety, security or non-disclosure of the
identity of a victim or witness," and "the protection of the interests
of justice." In addition -- and also consistent with the practice of
other international criminal tribunals trying persons charged with war
crimes -- the regulations allow for the presentation of evidence in
camera where its publication would endanger national security (e.g.,
classified information and intelligence sources). In all cases,
however, such information will be made known to the accused's
qualified defense counsel, who will have an opportunity to examine and
challenge witnesses and the evidence.

Taken together, the recently published regulations will result in
efficient and fair trials. Individual rights of those charged with
crimes will be respected, while assuring that those responsible for
killing civilians and other acts of terrorism will be convicted.