Published Bar Bulletin July 2008
‘Justice’ Guantánamo Style
By Stephen H. Carpenter, Jr.
“Military justice is to justice what military music is to music.”
Contrary to the above sentiment, military justice is more akin to a Mozart-composed symphony than a marching military band. In fact, the Uniform Code of Military Justice (UCMJ), on which the military justice system is based, provides a comprehensive set of pretrial, trial and post-trial procedures. Indeed, it is a system ripe with procedural and substantive due process, which in some instances surpasses the legal protections accorded defendants standing trial in state and federal courts.
A majority of the U.S. Supreme Court, in rebuking the various versions of military commissions proffered by the President, has repeatedly pointed their collective judicial fingers to the rights codified in UCMJ as a source to guide the administration in its effort to bring the commissions into constitutional compliance. For instance, in the landmark decision Hamdan v. Rumsfeld, the Court held “the rules set forth in the Manual for Courts-martial [and by implication the UCMJ] must apply to military commissions unless impracticable.”
In response to Hamdan, the President signed the Military Commissions Act of 2006 (MCA), which provided statutory authority to try unlawful combatants for violations of the law of war. The MCA adopted numerable due process guarantees, including independent military judges, the right to counsel, the presumption of innocence, the requirement that the prosecution prove its case beyond a reasonable doubt, the requirement that the accused be provided — well in advance of trial — evidence to be introduced against him, the prohibition against admitting classified evidence outside the presence of the accused and the requirement that the prosecution provide the accused exculpatory evidence or a declassified version of it.
While these rights are significant, the MCA expressly exempts or otherwise amends four fundamental provisions of the UCMJ.1 First, in some circumstances the military judge may permit the introduction of coerced and/or involuntary statements of the accused. Second, hearsay statements may be admitted if the trial court finds them “probative to a reasonable person.” Third, the commission jury pool is solely comprised of high-ranking officers, an atypical composition in any court-martial. Finally, and perhaps most notably, commission rules preclude a “thorough and impartial” pretrial investigation.
Coerced Confessions Should Be Inadmissible
In civilian systems of justice, a criminal defendant’s statement must be shown to have been “voluntarily” made prior to its admission.2 Similarly, in general courts-martial, statements obtained through coercion are “involuntary” and thus inadmissible. Despite this seemingly universal rule of law, military commissions under the MCA treat coerced statements differently, depending on when they were obtained.
For instance, if the statement was obtained before December 30, 2005, the military judge may admit the statement only if “(1) the totality of the circumstances renders the statement reliable; (2) the statement possesses sufficient probative value; and (3) the interests of justice would best be served by admission of the statement into evidence.”3 If, on the other hand, the statement was made on or after December 30, 2005, the military judge may admit the statement if he finds the previous three aforementioned elements and “the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment.”4
Thus, by implication, coerced statements obtained by use of “cruel, inhuman, or degrading treatment” are potentially admissible against an accused so long as they were taken before December 30, 2005. By admitting coerced statements, the government is seemingly endorsing the dubious interrogation tactics used to obtain them; a result that may degrade, if not universally discredit, the legitimacy of the verdicts.
The Composition of the Military Commission and Trial by Judge Alone
According to the MCA, only commissioned officers of the armed forces are eligible to serve as jurors on a military commission. This rule comports with the practice in courts-martial in which an officer is standing trial. However, in cases involving an enlisted soldier, the jury is routinely comprised of peers. But the Guantánamo commissions are exclusively comprised of high-ranking military officers, thus effectively precluding both enlisted soldiers and junior officers from participating as jurors.
The military commissions deviate from courts-martial in yet another fundamental way by precluding the accused from requesting a trial by military judge alone in non-capital cases. Military judges are extraordinary jurists, well-versed in both military law and the military in general. Thus, as a matter of fairness — or perhaps more as a matter of perceived fairness — our enlisted men and women, junior officers and military judges should be permitted to use their own unique training, background and experience to decide the merits of the pending matters.
Article 32 Investigations — The Investigative Pretrial Hearing
The Fifth Amendment right to a grand jury indictment is inapplicable to military justice. However, a process similar to a grand jury is required by article 32, UCMJ. In accordance with article 32, no criminal charges may be referred to a general court-martial for trial unless there has first been a “thorough and impartial investigation.” The military has long established this process to permit soldiers, with the effective assistance of counsel, to preliminarily challenge and assess the strengths and weaknesses of the prosecution’s case in a pre-arraignment hearing, termed an “article 32 hearing.”
The article 32 investigation requires the appointment of an investigating officer, who is required to preside over the contested proceeding, rule on evidentiary matters and ultimately make non-binding recommendations to his appointing authority about the merits and disposition of the case. Prior to the article 32 hearing, the government must provide the accused with discovery, including names of witnesses it intends to call, any and all attendant written statements, and — perhaps most importantly — all known statements of the accused and all evidence seized from him. During the hearing, the prosecution offers both witness and documentary evidence to support a “probable cause” finding that the alleged crimes were committed.
Detainees and their counsel would have the absolute right to be present to challenge the charges by cross-examining adverse witnesses. The defense might also present evidence and seek to compel the attendance of both friendly and adverse witnesses, although the investigating officer may deny defense witness requests. If so, the accused may raise the issue with the military judge who may reopen the article 32 hearing to allow for the testimony. In cases where live witness testimony simply cannot be arranged, the accused also may secure testimony by video deposition under Rule for Military Commissions 702.
The Admission of Hearsay
Hearsay is generally admissible during trials before military commissions so long as a military judge finds “the evidence has probative value to a reasonable person.”5 The Sixth Amendment’s right to confrontation is meant “to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier-of-fact.”6 This manner of “rigorously testing” the government’s case has been summarily termed “inapplicable” by the President.7
While this is certainly troubling, the military judge is given discretion to exclude such statements “if the party opposing the admission of the evidence demonstrates by a preponderance of the evidence that the evidence is unreliable under the totality of the circum-stances.”8 Moreover, the government must provide the accused all of the hearsay statements it intends to use at trial no later than “30 days in advance of trial.”9
Thus, the accused may seek to suppress the disclosed hearsay statements, prepare for the impeachment of the out-of-court declarant and/or assemble rebuttal evidence. Nonetheless, the admission of hearsay in commission trials, particularly those referred as capital cases, sorely offends notions of fairness.
Military criminal law is codified in the UCMJ, which first became effective in 1951. Its system of justice is capable of playing like a fine orchestra, and is deserving of the great deference and reverence that the U.S. Supreme Court has bestowed upon it. As Louis de Gaya, author of The Art of War, wrote in 1678, “justice ought to bear rule everywhere … it ought to be executed with as much exactness as in the best governed cities of the kingdom…”
Indeed, our nation, as the leader of the free world, should endeavor to accord the detainees “all the judicial guarantees which [are] recognized as indispensable by civilized peoples.”10 The detainees should receive even more of the same “indispensible” and inalienable rights as have been bestowed upon our own citizens and bring them — and the system on which this country was founded — justice.
Stephen Carpenter is a private practice attorney who formerly served terms as both a prosecutor and defense counsel in the U.S. Army Judge Advocate General’s Corps.
1 See Chapter 47A Military Commissions § 948b.
2 See 18 U.S.C. § 3501.
3 Military Commission, Rules of Evidence (Mil. Comm. R. Evid.) 304.
5 Mil. Comm. R. Evid. 401.
6 Maryland v. Craig, 497 U.S. 836, 845 (1990).
7 See Chapter 47A Military Commissions § 948b.
8 Mil. Comm. R. Evid. 803.
10 Common Article 3, Geneva Convention.