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From Nuremberg and Tokyo to Guantanamo: United States Military Commissions in Historical Perspective

By Howard R. Cabot and Brett T. George1

I. INTRODUCTION

Noor Uthman Muhammed was born in the Sudan in the late 1960s at a time when

his native land was engulfed in a civil war and prolonged economic depression. Like

many other young men seeking an escape from war and poverty, Noor left Sudan in

search of a better life. He was an orphan, poor, uneducated, but deeply religious. He

wanted to learn more about his religion and about defending Muslim ideology and was

drawn to Afghanistan which had become a center of Muslim cultural revival after the end

of the Soviet occupation in 1989. When he arrived, he stayed at a camp called Khalden

where he continued his religious studies and also received basic military training. He

studied the Koran and learned how to use basic small arms. He was a low-level

functionary, cooking, running errands and sometimes teaching others how to use small

arms. The camp was not run by Al Queda or the Taliban, and Noor never participated in

the planning of any terror attacks against civilians or against the United States. In fact,

the camp closed in 2000, long before the attack on the Twin Towers in New York and

long before America’s de facto declaration of war in response to these hostilities.

When Khalden shut its doors, Noor lost all interest in going to another camp. He

just wanted to go home. After traveling briefly in Afghanistan and Pakistan, he stayed

for a short time in a safe house in Pakistan, awaiting travel documents so he could make

his way back to Sudan. While there, he was captured in a massive raid seeking to find

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Abu Zubaydah, allegedly a key source of intelligence on al Queda and terrorist plots. In

simple parlance, Noor was a young man caught in the wrong place at the wrong time. He

was renditioned to Afghanistan, then to the US prison in Guantanamo where he has been

imprisoned for almost a decade.

In dispute, and the basis for his detention, are Noor’s actions while at Khalden.

But for the purposes of our discussion of national security interests and individual rights,

more critical are the actions, or inactions, by the US government to properly charge and

expedite judicial proceedings against him. It was not until May 2008, nearly 6 years after

his capture, that formal charges were brought against him. This has little practical

significance, as Noor accepted a plea bargain in February 2011 from the US government

on the eve of an evidentiary hearing that will enable him to go home within 22 months of

today in exchange for a guilty plea to offenses that would otherwise carry life sentences.

Yet his experiences within the US military commission system are a case study of the

conundrum of balancing national security and human rights while trying to afford

defendants due process of law.

Many scholars - from across the political spectrum - have compared America’s

military commissions to traditional, civilian courts.2 Few, however, have compared them

to previous conflict-oriented tribunals. This leaves a gap in the literature on

Commissions and prevents a full, accurate picture of them from taking shape.3 This

paper attempts to begin to fill that gap and complete that picture by placing the 2006 and

2009 versions of US military commissions alongside history’s most iconic conflict-

oriented tribunals - the post-WWII tribunals of Nuremberg and Tokyo and the mid-1990s

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tribunals of Yugoslavia and Rwanda. It does so in terms of five key procedural rights, all

of which have impacted the proceedings against Noor. Those rights are the right to a

public and speedy trial, the privilege against self-incrimination, the right to compulsory

process to obtain witnesses/other evidence, the right to exclude testimonial hearsay and

the right to trial by an impartial judge.

This comparison reveals mixed results for the Guantanamo-based commissions:

While they surpass prior conflict-oriented tribunals in some respects, they also fall

markedly short in others.4

II. CONTEXTUAL COMPARISON

As comparative legal theorists have long understood, defining and understanding

“context” is essential to any legitimate legal comparison.5 A brief overview of the

context surrounding the conflict-oriented tribunals covered by this paper is thus a

necessary precursor to this paper’s purpose. This comparison will focus on three major

aspects of that context - the nature of the conflict leading to the tribunals’ establishment,

the manner in which the tribunals were created and the purposes the tribunals were to

pursue.6

A. Nuremberg and Tokyo

The Nuremberg and Tokyo tribunals - properly known as the International

Military Tribunal (“IMT”) and the International Military Tribunal for the Far East

(“IMTFE”) - are often credited with laying “the foundation of the international criminal

justice system as we know it today.”7 Each tribunal was created in the aftermath of

WWII, a war that occurred within relatively defined geographic boundaries and between

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the armies of identifiable states. Though the procedures used to create the IMT and

IMTFE varied slightly, no one nation created either tribunal. Indeed, both the IMT and

IMTFE sprung from a multilateral process.8 As one prong of the Allies’ response to the

atrocities committed by their German and Japanese foes, each tribunal had both punitive

and transitional aims.9

B. Yugoslavia and Rwanda

Nearly fifty years after the Nuremberg and Tokyo tribunals, two major, atrocity-

filled conflicts erupted in Yugoslavia and Rwanda, leading to the creation of two more

special tribunals - the International Criminal Tribunal for former Yugoslavia (“ICTY”)

and the International Criminal Tribunal for Rwanda (“ICTR”). Each was established in

response to atrocities committed during largely internal, civil war-like conflicts. While

the ICTR was established after the Rwandan genocide had taken place, the ICTY was

created while the conflict in the former Yugoslavia was still ongoing.10 Though neither

the ICTY nor ICTR was created by a multilateral treaty, each sprung from the

multilateral process of UN Security Council resolutions.11 Both the ICTY and ICTR

meted out individual punishments, but each tribunal was established with an explicit

focus on transitional justice.12

C. Military Commissions

On September 11, 2001, less than two decades after the Security Council

established the ICTY and ICTR, America suffered “the most devastating attack on [its]

soil in modern times.”13 Shortly after these attacks—and with the so-called “War on

Terror” showing no signs of abating—President George W. Bush issued an executive

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order establishing military commissions to try suspected terrorists.14 Following the U.S.

Supreme Court’s ruling in Hamdan v. Rumsfeld—which declared these Commissions

unconstitutional15—America’s legislature sprang into action, passed the Military

Commissions Act of 2006 (“2006 MCA”), and re-established the commissions system

with several changes.16 Though President Obama suspended use of the commissions for

a short time in 2009,17 Congress resurrected the system in 2009 by passing the Military

Commissions Act of 2009 (“2009 MCA”).18

Each iteration of America’s military commissions’ system was designed to try

individuals suspected of participating in the so-called “War on Terror,” an ongoing,

“completely unconventional, non-traditional [. . .] conflict.”19 In each instance, the

United States modified or established its terrorism-related military commissions

unilaterally, without the input of other nations. While the commissions may have some

ancillary, transitional effects, they have almost an exclusively punitive orientation.

Indeed, the U.S. government’s official military commissions website makes no mention

of broad, society-building goals.20 Instead, it emphasizes commissions’ punishment-

imposing function.21

III. SPECIFIC PROVISIONS

As noted previously, a great deal of debate exists as to how one should categorize,

under international law, America’s ongoing battle against terrorism. Though highly-

qualified academics and practitioners disagree as to whether or not the United States is

legally “at war,” the fact remains that America established its military commissions

system within a “war” paradigm. It thus makes sense to evaluate those commissions

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alongside other conflict-oriented tribunals. This evaluation will take place in terms of

five aspects of the commission system - the right to a public and speedy trial, the

privilege against self-incrimination, the right to compulsory process to obtain witnesses

and other evidence, the right to exclude testimonial hearsay and the right to trial by an

impartial judge. Each of these aspects affected the proceedings against Noor in one way

or another.

A. Public and Speedy Trial

Enshrined in numerous international and domestic legal documents, the rights to a

public and speedy trial have long been considered basic features of any legitimate justice

system.22 While military commissions’ public trial guarantees generally track those of

their conflict-oriented predecessors, they fall disappointingly short with regards to speedy

trial rights.

1. Public Trial

Military commissions, like the other tribunals examined here, strive to keep

hearings open to the public when practicable. Indeed, an examination of the way in

which military commissions maintain this publicity shows that the system at Guantanamo

does not differ significantly from the tribunals that came before it.

a) IMT and IMTFE

Both the IMT and IMTFE were set up as public bodies - both in terms of their

founding documents, rules of procedure and actual administration. The IMT’s charter

and rules of procedure, for example, required all judgments and rulings to be entered in

open court.23 Moreover, the presiding authorities of the IMT & IMTFE had the power to

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enter closed session or exclude individuals from their tribunals’ proceedings only if

justice required.24 Though these provisions gave the tribunals a great deal of discretion in

who could be excluded and when sessions could be closed, they nevertheless make clear

that open sessions were to be the norm, not the exception.

b) ICTY and ICTR

Like the IMT and IMTFE, the ICTY and ICTR were also designed to function as

public bodies. Indeed, the charters of both tribunals established that hearings “shall be

public.”25 Closed sessions were to be the exception, with such being allowed at each

tribunal only if the relevant rules of procedure and evidence were followed.26 These rules

provided that, other than deliberations, the tribunals’ proceedings were to occur

publicly.27 Individuals could only be excluded for one of the following three reasons -

for “public order or morality,” to ensure the “safety, security, or non-disclosure” of a

witness or victim’s identity, or for the “protection of the interests of justice.”28

c) Military Commissions

Like those of the conflict-oriented tribunals that came before it, the rules for U.S.

military commissions envision trials that are generally public. The commissions can only

be partially or wholly closed where the military judge makes a “specific finding” that

such closure is necessary to achieve one of two objectives - to either protect against the

disclosure of sensitive information or to ensure individuals’ physical safety.29 These

rules were originally contained in the 2006 MCA and were not modified in 2009.30 In the

case of Noor, both the commission prosecutors and defense counsel worked together to

minimize the amount of time the proceedings would need to be closed.

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2. Speedy Trial

Although the military commissions system compares favorably to the other

tribunals in terms of public proceedings, it falls disappointingly short with regards to

speedy trial rights.

a) IMT and IMTFE

Although both the IMT and IMTFE provided for a speedy trial, they did so in

terms of tribunal procedure, not the rights of defendants. Each tribunal’s charter stated,

in its opening paragraph, that each was established for the “prompt trial and punishment”

of the major war criminals in its respective area.31 Moreover, the scope of trials at each

tribunal was to remain narrow so as to allow for “expeditious hearing[s],” each tribunal’s

judge was to protect against “unreasonable delay,” and the rules of evidence for each

tribunal were to be designed to allow for as “expeditious” a trial as possible.32 Finally,

both the IMT & IMTFE were to “deal summarily” with any contumacies that arose

during proceedings.33

b) ICTY and ICTR

Whereas the IMT & IMTFE couched a speedy trial in terms of procedure, not an

individual right, the ICTY & ICTR placed it in both categories. Article 20 of the ICTY

Statute and Article 19 of the ICTR Statute, for example, classify it as a procedural

imperative. These articles task the ICTY and ICTR trial chambers with ensuring that

proceedings are “expeditious” and that accused individuals are “immediately informed”

of the charges against them after being taken into custody.34 By contrast, Article 21 of

the ICTY Statute and Article 20 of the ICTR statute protect a speedy trial in terms of a

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right possessed by the defendant. These articles guarantee an accused both the right “to

be informed promptly” of the charges against him and the right “to be tried without

undue delay.”35 Finally, the U.N. Security Council has adopted multiple resolutions

urging both tribunals to complete their work as “expeditiously” as possible.36

c) Military Commissions

Just as the 2009 MCA did not modify the 2006 MCA’s provisions on public trials,

neither did it modify the 2006 MCA’s provisions on speedy trial rights.37 The concept of

a speedy trial has no place in U.S. military commission proceedings, either as a

procedural assurance or as a right guaranteed to the accused. Before the 2006 MCA was

passed, opponents cited this lack of speedy trial guarantee as one of the features that

moved military commissions away from international standards.38 The 2006 MCA not

only did not guarantee future defendants the right to a speedy trial, it expressly made

inapplicable to military commissions the Uniform Code of Military Justice (“UCMJ”)

provision that guarantees a speedy trial.39 This lack of speedy trial guarantee - either in

terms of commission procedure or individual right - has allowed the U.S. government to

hold the six detainees actually convicted in military commissions for an average of 7.6

years before trial.40

Noor’s case is no exception. He arrived in Guantanamo in August, 2002. He was

initially charged some 6 years later, in May 2008. Those charges were dismissed without

prejudice and refiled in December 2008. Noor was the last detainee arraigned under the

Bush Administration on January 14, 2009. The first evidentiary hearing where Noor

would be given the opportunity to challenge the government’s case would not be until

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February 14, 2011, on the morning Noor entered his plea, almost 9 years after his arrival

in Guantanamo. While neither the 2006 MCA or 2009 MCA specifically contain a

speedy trial guarantee, it is worth noting that the military commission judge assigned to

the matter was extremely sensitive to the delay in bringing Noor to trial, worked

diligently to expedite the proceedings by, among other things, resolving discovery

disputes, expert witness issues and other motions as soon as practicable under the unique

circumstances presented by a case venued in Guantanamo, and continuously urged

counsel to move the case along.

B. Privilege Against Self-Incrimination

The United States Supreme Court has recognized the privilege against self-

incrimination as “one of the great landmarks in man’s struggle to make himself civilized”

and as “reflect[ing] many of our fundamental values and most noble aspirations.”41

Surprisingly, perhaps, out of all the tribunals examined here, only the ICTY and ICTR

protect this fundamental right.

1. IMT/IMTFE and ICTY/ICTR

As numerous scholars have noted, neither the IMT nor the IMTFE granted

defendants the privilege against self-incrimination.42 Instead “interrogation of defendants

was a routine part of the [IMT] prosecution’s pretrial preparation.”43 The statutes of the

ICTY and ICTR, by contrast, both guaranteed that a defendant would “[n]ot be

compelled to testify against himself or herself or to confess guilt.”44 Though the rules of

both the ICTY and ICTR allowed the tribunals to compel witnesses to answer self-

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incriminating questions, the answers given could only be used against them in later

perjury prosecutions.45

2. Military Commissions

Though U.S. military commissions do not completely fall back to the non-existent

self-incrimination protections of the IMT & IMTFE, it does not protect this right to as

great an extent as the ICTY & ICTR. While individuals cannot be required to testify

against themselves,46 those provisions of the UCMJ that deal with self-incrimination are

almost all made expressly inapplicable to military commissions.47 Moreover, neither the

statutes governing military commissions nor the Commission Rules of Procedure prohibit

drawing an adverse inference from an accused’s failure to testify.48 These provisions are

the same in the 2006 & 2009 versions of the Military Commissions Act.49 Notably,

however, under both versions of the MCA, defendants are allowed to submit unsworn

statements on their own behalf without subjecting themselves to cross-examination, a

procedure that Noor availed himself of during his sentencing jury trial immediately

following the entry of his plea.

C. Compulsory Process to Obtain Witnesses and Other Evidence

Few, if any, of the rights discussed here would guarantee a defendant a fair trial if

that defendant were unable to obtain the evidence and call the witnesses needed to

counter the charges against him. For reasons owing largely to their multilateral

establishment, neither the IMT/IMTFE nor ICTY/ICTR fully protected this right. Even

though military commissions do not share this multilateral foundation, they too fall short

of fully protecting a defendant’s right to compulsory process and right of confrontation.

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1. IMT and IMTFE

The IMT and IMTFE had similar rules governing the right to compulsory process,

with neither guaranteeing that an accused would obtain the information or witnesses

needed to defend himself.50 At both the IMT & IMTFE, a defendant could only submit

an application for evidence and/or witnesses to be produced.51 Not only did the tribunals

have the relatively-unfettered discretion to accept or reject these applications, they were

limited in what they could do if they did accept them. Indeed, after either tribunal

accepted a defendant’s application for evidence or witnesses, it could only make a

subsequent request that the state where the evidence or witness was located produce it.52

By injecting discretion both at the tribunal and state levels, the IMT & IMTFE created

uncertainty about whether an accused would be able to obtain the information needed to

put on a defense.

2. ICTY and ICTR

The ICTY and ICTR are a step forward from the IMT and IMTFE in the access

they grant defendants to evidence and witnesses. Unlike their post-WWII counterparts,

both tribunals list access to evidence and witnesses as one of the rights guaranteed to an

accused.53 Not only that, each tribunal also guarantees defendants the same access to

witnesses as the prosecution.54 Still, a flaw common to international criminal tribunals

remains with both the ICTY and ICTR - each must depend on states’ cooperation.55 Like

the IMT & IMTFE, both the ICTY & ICTR can only request that states produce evidence

or deliver witnesses. Though the statutes of both the ICTY and ICTR obligate states to

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comply with the tribunals’ directives, whether evidence is ever produced ultimately falls

within individual states’ discretion.56

3. Military Commissions

Though individuals tried before military commissions still have limited access to

evidence and witnesses, the 2009 MCA placed defendants in a better position than they

were in under the 2006 MCA. Though battlefield realities may necessitate some

constraints on commission defendants’ access to information and witnesses, even this

improved access is troubling.

a) Classified Evidence

Perhaps the greatest restriction on defendants’ access to evidence and witnesses

comes from military commissions’ classified information provisions. Under the 2009

MCA, these provisions come into play after the government’s trial counsel submits a

declaration, signed by a “knowledgeable” official with “authority to classify

information,” stating the damage full disclosure would cause.57 Though still far from

perfect, the 2009 MCA made several changes to increase defendants’ access to this class

of evidence.

Whereas the 2006 MCA provided no opportunity for military commission judges

to order access to classified information, the 2009 MCA allows commission judges to do

so if they first make certain findings regarding the evidence.58 However, even if the

military judge grants the defendant access to classified information, that information will

often only be in redacted or summarized form.59 Indeed, the judge must grant a

prosecutor’s summary or redaction request if he or she finds that the proffered substitute

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would “provide the accused with substantially the same ability to make a defense as

would discovery of or access to the specific classified information.”60 The prosecutor

may only replace the classified information with this redaction or summary following an

ex-parte proceeding conducted according to procedures followed by U.S. federal courts

under the Classified Information Procedures Act (“CIPA”).61 If a military judge

ultimately decides to issue a substituted evidence order, that order is un-reviewable so

long as it was issued according to the proper procedures.62 Together, these procedures

potentially allow the U.S. government to keep commission defendants in the dark about a

wide range of important evidence.

To ameliorate the possible prejudice created by these procedures, the commission

judge in Noor’s case granted Noor’s motion to require the government to submit to the

defense a list of purportedly “classified” documents and permit Noor to make an ex parte

filing to challenge the prosecution’s designation. This procedure was adopted in part

from the protocol established by Federal District Court Judge Gesell in United States v.

Poindexter and was without precedent in previous commission cases.63

b) Brady Material and Access to Other Evidence

As restrictive as the 2006 and 2009 MCAs’ provisions on classified evidence

might be, in some areas military commissions provide defendants with greater access to

evidence and witnesses than their WWII and mid-1990s predecessors.

First, under both the 2006 and 2009 MCA, commissions can compel individuals

under U.S. jurisdiction to appear and testify.64 Defendants under both versions of the

MCA also receive any evidence actually admitted at trial.65 Thanks to the 2009 MCA, a

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military judge now has the power to grant immunity to individuals whose testimony

might incriminate them.66 The 2009 MCA not only made this improvement to

defendants’ access to evidence, it also increased the amount of information subject to

mandatory disclosure. Whereas the 2006 MCA obligated the prosecution to disclose only

exculpatory evidence of which the trial counsel was actually aware,67 the 2009 MCA

mandates that the prosecution also disclose mitigating evidence.68 Not only that, the

scope of evidence is also increased to include not only evidence actually known to trial

counsel but also evidence of which any government official involved in the defendant’s

investigation or prosecution reasonably should be aware.69

Despite these relatively positive changes, military commissions still place

potentially fatal limits on defendants’ access to evidence and witnesses. Under the 2006

MCA, for example, defendants were to be given a “reasonable opportunity,” subject to

Department of Defense (“DoD”) regulations, to obtain witnesses and other evidence.70

The 2009 MCA amended this section by removing the reference to DoD regulations and

instead providing that commission defendants are to have access to evidence and

witnesses in a “manner comparable to the opportunity available to a criminal defendant in

federal court.”71 That the standard of access is merely “comparable to” and not “equal

to” that of a federal court is troubling, as it appears to create room for denying

defendants’ access to evidence.

One place in which military commissions’ “comparable to” standard falls short of

that established in America’s other judicial fora is with what is known as Brady material.

Named for the 1963 U.S. Supreme Court case Brady v. Maryland,72 Brady material is

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evidence which is material, relevant to guilt or punishment, favorable to the accused, and

within the knowledge or possession of anyone acting on behalf of the State.73 In

America’s civilian courts, principles of due process require prosecutors to turn over all

such information to the defense, whether or not they plan on introducing it at trial.

While the 2006 and 2009 MCAs mandate that defendants have access to certain

evidence, that access does not cover all Brady material. Indeed, defendants only have

guaranteed access to exculpatory and mitigating evidence, but not other favorable

evidence (like impeachment) whose disclosure Brady would require.74 Commissions’

allowance for the use of summaries further restricts what defendants may learn about

potentially favorable information.75

D. Allowance of Testimonial Hearsay

One of the major pillars of America’s legal system is the general exclusion of

hearsay evidence.76 Not only common to America, this prohibition exists in one form or

another in common-law systems around the world.77 However, hearsay receives quite the

opposite treatment throughout the world’s civil law systems. In those systems few

exclusionary rules exist and most hearsay evidence is regularly admitted.78 Since the vast

majority of the world’s countries possess civil law systems, it should come as no surprise

that “international courts usually admit hearsay evidence.”79 All three sets of tribunals

examined here follow this trend and generally admit hearsay evidence.

1. IMT/IMTFE

As the forerunners of the modern system of international criminal justice, the

judges of the IMT and IMTFE regularly admitted hearsay evidence.80 As one dissenting

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judge noted, the IMTFE “admitted much material which normally would have been

discarded as hearsay.”81 Not only did both tribunals regularly admit oral hearsay, they

also consistently allowed both the prosecution and defense to introduce documentary

hearsay, or affidavits, containing statements of persons who did not testify.82 The

tribunals’ willingness to admit this particular type of hearsay sprung largely from a desire

to conduct as many trials as possible in as short a time as possible, with as much evidence

as possible.83 This reflected the evidentiary “culture” each tribunal established—

technical rules of evidence did not apply and any probative evidence was admitted.84

Judges could be trusted to properly weigh the evidence.

2. ICTY/ICTR

Like the IMT and IMTFE, both the ICTY and ICTR consistently admit hearsay.

When one prominent defendant’s lawyer petitioned the ICTY to bar the prosecution from

introducing hearsay, the ICTY responded by saying it would examine each piece of

evidence individually, determining itself “whether the […] evidence is relevant and has

probative value.”85 The ICTR has ruled similarly when objections to hearsay have been

raised, holding that hearsay “is not [automatically] inadmissible” and will instead be

evaluated like all other evidence.86 Thus, each tribunal admits hearsay so long as it is

both relevant and probative.87 This framework provided each tribunal room to read a

“reliability” requirement into their evidence-evaluation scheme, making the concept of

hearsay far from irrelevant.88

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3. Military Commissions

While America’s military commissions regularly admit hearsay evidence, they do

so under less permissive structures than their international predecessors. Indeed, while

neither the 2006 nor 2009 MCA automatically bars hearsay as such, each requires the

party wishing to introduce hearsay evidence to provide sufficient notice to the opposition

of their intent to do so.89 Not only must this notice reveal the party’s intent to offer the

hearsay evidence, it must also detail the evidence’s “particulars.”90 Explicitly included

within these “particulars” is information about “the circumstances under which the

evidence was obtained.”91

Although both the 2006 MCA and the 2009 MCA provide for the admission of

hearsay, they regulate hearsay in different ways. Each version directs commissions to

exclude hearsay where it is “clearly […] unreliable or lacking in probative value.”92

However, whereas the 2006 MCA placed the burden of proving this on the party

opposing the evidence’s admission,93 the 2009 MCA shifted the burden of proving

reliability to the party offering the evidence.94 Whereas the 2006 MCA admitted hearsay

evidence if this standard was not met, the 2009 MCA requires the commission judge to

make certain findings about the evidence.95 In particular, the military judge must now

find that the evidence helps prove a “material fact,” that it “is probative,” that “adverse

impacts on military or intelligence” would result if the witness was forced to testify and

that “the general purposes of the rules of evidence and the interests of justice” would be

furthered by admitting the evidence.96

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Together with the requirement of notice, the additional ways the 2009 MCA

restricts hearsay’s admissibility appears to reflect—at least partially—the American view

that hearsay is inherently different from all other classes of evidence. These restrictions,

however, fall short of affording commission defendants in the case of testimonial hearsay

the full benefit of rights to confront and cross-examine their accusers under the

Confrontation Clause of the Six Amendment of the US constitution. As pointed out by

the US Supreme Court in Crawford v. Washington, 541 U.S. 36, 62, “Dispensing with

confrontation because testimony is obviously reliable is akin to dispensing with jury trial

because a defendant is obviously guilty.” With cross-examination often viewed as the

“greatest engine for ascertaining truth,”97 it can not be said that the 2009 MCA treatment

of testimonial hearsay under a reliability standard alone is adequate. In Noor’s case, the

prejudice in not being able to confront his accusers during his sentencing trial was

woefully apparent after listening to prosecutors read to the military jury the purported

statements of two convicted terrorists allegedly associated with al Queda, neither of

which directly connected Noor to the horrific events described and one of which was

actually recanted by the declarant after the statement was allegedly made.

E. Trial by an Impartial Judge

Nearly thirty years ago an international conference tasked with elucidating a set of

principles vital to any legitimate, independent judiciary emphasized that judges should

“decide matters impartially […] without any […] improper influences […] from any

quarter or for any reason.”98 It should come as no surprise that, recognizing the

importance of impartiality to being seen as legitimate, nearly all the international criminal

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tribunals in recent years have placed a strong emphasis on the impartiality of their

judges.99 Military commissions unfortunately buck this trend and—like the WWII-era

tribunals before them—contain no provisions guaranteeing their judges‘ impartiality.

1. IMT and IMTFE

In the decades since their establishment, observers from around the world have

criticized both the IMT & IMTFE as the classic example of victor’s justice.100 While this

sense of victor’s justice was manifest throughout virtually all aspects of both tribunals, it

was especially apparent in how judges were selected. The judges of both the IMT and

IMTFE were not selected by an independent, impartial body, but by the very nations who

had conquered the Axis powers and decided to construct the commissions to try their

leaders.101 Neither the IMT nor IMTFE charter required its judges to be lawyers, free of

military connections, or otherwise qualified in any manner.102

2. ICTY and ICTR

In contrast to the requirements for IMT and IMTFE judges, impartiality was made

an explicit requirement for the judges of the ICTY & ICTR. The statute of each tribunal

required judges to be “persons of high moral character, impartiality, and integrity.”103

Moreover, each tribunal’s rules of procedure bar judges from participating in trials or

appeals in which they have a personal interest or other association that could affect their

impartiality.104 As if these guarantees were not enough, in Prosecutor v. Furundzija the

ICTY set forth detailed criteria for determining impartiality and disqualifying judges for

bias.105

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3. Military Commissions

If the impartiality the ICTY and ICTR required of its judges represented a giant

leap forward from Nuremberg and Tokyo, that required (or not required) of military

commissions’ judges represents a step backwards from the ICTY and ICTR. Still, the

Commissions system has some redeeming features that prevent it from falling all the way

back to the IMT & IMTFE’s low bar. First, commission judges are required to take an

oath to faithfully perform their duties.106 Second, commission judges can neither vote

with the military commission nor consult ex-parte with commission members.107 Third,

individuals are prohibited from serving as commission judges in cases where they are

also an accuser, investigator, witness, or counsel.108 Fourth, the American government is

prohibited from censuring, reprimanding, or otherwise admonishing commission judges,

and individuals are prohibited from using unauthorized means to influence a

commission’s actions.109 Fifth, commission judges may be removed for cause.110 Sixth

and finally, under both the 2006 and 2009 MCA commission decisions can be

appealed—albeit in a limited fashion—to civilian courts.111

Despite these relatively positive provisions, problems remain. As mentioned

above, both the 2006 and 2009 MCA severely limit the review civilian courts exercise.

Indeed, these civilian courts—which would otherwise be a strong bulwark against

partiality—may only review whether sufficient evidence existed to support the

commissions’ verdict and whether the trial preceding that verdict complied with the

commissions’ own rules.112 Not only is America’s judicial system statutorily unable to

ensure commissions’ impartiality, the ability of the other branches of America’s

91004-0032/LEGAL23505848.1 22

government to do so is also limited. Indeed, the commission’s convening authority is

prohibited from preparing or reviewing any report on judges’ effectiveness, fitness, or

efficiency.113 Thus, even though military commissions are more independent and

impartial than they were under President Bush’s executive order, the “risks [of partiality]

remain robust.”114

IV. CONCLUSION

Controversy surrounds virtually all aspects of America’s military commissions--

individuals disagree on whether they should have been established, whether their

procedures provide sufficient due process protections, and whether America is legally “at

war.” Despite all of this, the fact remains that the Commissions were set up, modified,

and continue to operate within the context of an ongoing conflict. In comparing these

Commissions to other conflict-oriented tribunals, it becomes apparent that they provide

greater due process protections in some areas and lesser protections in others.

In the end, we believe the United States can and should do better. Unlike the

tribunals of Nuremberg, Tokyo, Yugoslavia, or Rwanda, America set up the military

commissions system on its own. There is no need for the United States to compromise

on what it believes is right to afford trials of alleged terrorists that are both fair and

perceived to be fair and are consistent with rule of law principles that are the backbone of

America’s vital democracy. In sum, there is room for US military commissions to

evolve, grow, and move towards the standard that President Obama articulated in

September 2010 — a military commission system that reflects “the highest standards of

due process.”115

91004-0032/LEGAL23505848.1 23

ENDNOTES

1 Howard R. Cabot is a Partner at Perkins Coie who has represented Guantanamo detainee Noor Uthman Muhammed in proceedings before the U.S. Military Commissions since January 2009 and served as lead trial counsel during Noor’s February 2011 trial proceedings. Brett George is a Fellow at Arizona State University’s Center for Law and Global Affairs who founded and served as president of ASU’s chapter of the International Law Society.

2 See, e.g. Ian Kennedy, Military Commissions, Criminal Court, and the Christmas Day Bomber, note, 34 B.C. INT’L & COMP. L. REV. 413 (2011) (using Farouk Abdulmutallab as a case study to compare military commissions with Art. III courts); Joshua Alexander Geltzer, Of Suspension, Due Process, and Guantanamo: The Reach of the Fifth Amendment After Boumedine and the Relationship Between Habeas Corpus and Due Process, 14 U. PA. J. CONST. L. 719, 732 (2012) (noting difference between military commissions and Art. III courts in admissibility of hearsay evidence).

3 The authors of this paper recognize that a great deal of controversy exists as to the extent (if at all) to which the United States’ ongoing conflict with Al-Qaeda qualifies as a “war” under international humanitarian law. See, e.g. Marco Sassoli, Terrorism and War, 4 J. INT’L CRIM. JUST. 959 (2006) (examining the international legal status of the current fight against terrorism). However, this paper’s limited scope precludes this topic from being addressed.

4 America’s Military Commissions raise a host of other legal issues - ex-post facto punishment, definition of crimes, etc - many of which had perhaps a greater impact on Noor than the issues examined here. However, this paper’s limited scope precludes addressing these topics.

5 See, e.g. Edward J. Eberle, The Method and Role of Comparative Law, 8 WASH. U. GLOBAL STUD. L. REV. 451, 458-61 (2009) (explaining how one must understand a law or institution’s context to make a valid comparison).

6 Though tribunals can have many purposes, for purposes of this paper we place their aims into two broad categories – either “punitive” or “transitional.” Simply put, a “transitional” tribunal would have as one of its goals the promotion of peace, societal reformation, and/or reconciliation between once-antagonistic factions. On the other hand, a “punitive” tribunal would designed merely to, in some way, deprive convicted persons of their liberty.

91004-0032/LEGAL23505848.1 24

7 Leonie von Braun and Annelen Micus, Judicial Independence at Risk, 10 J. INT’L CRIM. JUST. 111, 113 (2012).

8 The IMT was formally created on August 8, 1945 through a multilateral agreement between the Allied powers. See IMT Charter, Art. 1. While the Allies used the Potsdam Declaration of July 26, 1945 to announce their intention to prosecute the major Japanese war criminals, the IMTFE was actually created on January 19, 1946 through a proclamation issued by Gen. MacArthur, then Supreme Commander for the Allied Powers. See Madoka Futamura, War Crimes Tribunals and Transitional Justice: The Tokyo Trial and the Nuremberg Legacy, 53 (2008)

9 While perhaps more applicable to the IMT than the IMTFE, both tribunals aimed to both punish individual perpetrators and send messages to broader society that would help transition to a more secure future. See Ruti G. Teitel, Transitional Justice Geneology, 16 HARV. HUM. RTS. J. 69, 70 (2003) (arguing that the IMT is “the most recognized symbol” of transitional justice’s early years); see also Futamura at 52 (noting how the IMTFE was to have the same punitive and transitional purposes as the IMT).

10 The Rwandan genocide took place between April and July 1994. See, e.g. “Rwanda: How the Genocide Happened,” BBC News, http://news.bbc.co.uk/2/hi/1288230.stm (accessed March 27, 2012). The ICTR was not established until November of that year. S.C. Res. 955, 8 Nov. 1994, U.N. Doc. S/RES/955 (1994). By contrast, the ICTY was established in 1993. S.C. Res. 827, 25 May 1993, U.N. Doc. S/RES/827 (1993). It has heard a number of cases concerning events that occurred long after its establishment. See, e.g. Prosecutor v. Boskovski, Case No. IT-04-82-PT, Decision on Johan Tarculovski’s Motion Challenging Jurisdiction (Jun. 1, 2005) (concerning events that occurred in 2001).

11 The ICTY was established in mid-1993 by Resolution 827, S.C. Res. 827, 25 May 1993, U.N. Doc. S/RES/827 (1993), while the ICTR was established in-late 1994 by Resolution 955. S.C. Res. 955, 8 Nov. 1994, U.N. Doc. S/RES/955 (1994).

12 For evidence of the ICTY’s transitional focus, see Report of the Security Council Mission Established Pursuant to Resolution 819, addressed to the President of the Security Council, U.N. Doc. S/25700 (Apr. 30, 1993). For evidence of the ICTR’s transitional focus, see S.C. Res. 955, 8 Nov. 1994, U.N. Doc. S/RES/955 (1994) (noting how the tribunal was to contribute to “national reconciliation” and the “restoration and maintenance of peace”).

13 Peter Baker, Helene Cooper, and Mark Mazzetti, “Bin Laden is Dead, Obama Says,” N.Y. Times, A1, May 2, 2011.

14 Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 FR 57833.

15 126 S.Ct. 2749 (2006).

16 Pub. L. No. 109-366 (2006).

17 Matthew Weaver, “Obama Orders Halt to Guantanamo Bay Tribunals,” The Guardian, Jan. 21, 2009, available at http://www.guardian.co.uk/world/2009/jan/21/barack-obama-guantanamo-bay-tribunals.

18 Pub. L. No. 111-84 (2009).

19 Guy Raz, “Defining the War on Terror,” NPR, Nov. 1, 2006, available at http://www.npr.org/templates/story/story.php?storyId=6416780. 20 See “About Us,” Military Commissions’ official website, www.mc.mil/aboutus.aspx. 21 Id.

22 Article 14 of the International Covenant on Civil and Political Rights (“ICCPR”) and the Sixth Amendment to the U.S. Constitution are two of the more prominent examples of documents that enshrine these rights.

23 IMT Charter, Art. 17; IMT Rules, R. 7(c).

91004-0032/LEGAL23505848.1 25

24 IMT Rule, R. 7(c) and IMTFE Rules, R. 3.

25 Statute of the International Criminal Tribunal for the Former Yugoslavia (“ICTY Statute”), Art. 20(4), 32 I.L.M. 1159, 1198 (1993); Statute of the International Criminal Tribunal for Rwanda (“ICTR Statute”), Art. 19(4), 32 I.L.M. 1598, 1609 (1994).

26 Id.

27 ICTY Rules, R. 78; ICTR Rules, R. 78.

28 ICTY Rules, R. 79; ICTR Rules, R. 79.

29 10 U.S.C. § 949D(c).

30 Jennifer K. Elsea, The Military Commissions Act of 2009: Overview and Legal Issues, 44 (2010), available at http://www.fas.org/sgp/crs/natsec/R41163.pdf.

31 IMT Charter, Art. 1; IMTFE Charter, Art. 1.

32 IMT Charter, Art. 18; IMTFE Charter, Art. 12.

33 Id.

34 ICTY Statute, Art, 20; ICTR Statute, Art. 19.

35 ICTY Statute, Art. 21; ICTR Statute, Art. 20.

36 See, e.g. S.C. Res. 1878, U.N. Doc. S/RES/1878 (2009).

37 Supra, n. 30.

38 H.R. Rep. No. 109-664(I), at 85 (2006).

39 10 U.S.C. § 948B(d)(1)(A).

40 “Facts and Figures: Military Commissions v. Federal Courts,” Human Rights Watch, http://www.hrw.org/features/guantanamo-facts-figures.

41 Murphy v. Waterfront Comm’n of New York Harbor, 378 U.S. 52, 55 (1964), overruled on other grounds by United States v. Balsys, 524 U.S. 666, 690 (1998).

42 See, e.g. Diane Marie Amann, A Whipsaw Cuts Both Ways: The Privilege Against Self-Incrimination in an International Context, 45 UCLA L. Rev. 1201, 1251-52 (1998).

43 Id. at 1252, fn. 314 (citing numerous examples of practices at Nuremberg that would violate any modern conception of the privilege against self-incrimination).

44 ICTY Statute, Art. 21(4)(g); ICTR Statute, Art. 20(4)(g).

45 ICTY Rules, R. 90(e); ICTR Rules, R. 90(e).

46 10 U.S.C. § 948R(b).

47 10 U.S.C. § 948B(d)(B). The only UCMJ self-incrimination protection that applies to military commissions is UCMJ, Art. 31(c), which prevents defendants from being compelled to produce immaterial or degrading statements or evidence.

91004-0032/LEGAL23505848.1 26

48 See Elsea, supra n. 30 at 46.

49 Id.

50 For the IMT see Rule 4; for the IMTFE provisions dealing with compulsory process, see the IMTFE, Art, 9(5). While not exactly the same, the IMTFE procedures are a simplified version of IMT Rule 4.

51 IMT Rules, R. 4; IMTFE Charter, Art. 9(5).

52 Id.

53 ICTY Statutes, Art. 21(e); ICTR Statutes, Art. 20(4)(e).

54 Id.

55 For a discussion of the problems this poses for international criminal tribunals’ due process protections, see Gabrielle Kirk McDonald and Olivia Swaak-Goldman, Substantive and Procedural Aspects of International Criminal Law: Commentary, vol. 1, 443 (2000).

56 ICTY Statutes, Art. 29; ICTR Statutes, Art. 28.

57 10 U.S.C. § 949P-4(a)(1).

58 10 U.S.C. § 949P-4(a)(2). This section authorizes the military judge to order the defendant be granted access to information if he or she finds that it would be “noncumulative, relevant, & helpful to a legally cognizable defense, rebuttal of the prosecution’s case, or to sentencing.”

59 See 10 U.S.C. § 949P-4(b)(1)-(3).

60 10 U.S.C. § 949P-4(b)(3). While providing some protection, this procedure is still troubling because it neither balances the harm to the defendant and the benefit to the government, nor does it place any importance on whether the substitution makes it more difficult for the accused to defend himself.

61 10 U.S.C. § 949P-4(b)(2).

62 10 U.S.C. § 949P-4(c).

63 698 F. Supp. 316 (D. D.C. 1988).

64 2006 MCA § 949J(b); 10 U.S.C. § 949J(a).

65 2006 MCA § 949A(b)(1)(A); 10 U.S.C. § 949P-1(b).

66 10 U.S.C. § 949J(a).

67 2006 MCA, § 949J(d).

68 10 U.S.C. § 949J(b).

69 Id.

70 2006 MCA, § 949J(a).

71 10 U.S.C. § 949J(a).

72 Brady v. Maryland, 373 U.S. 83 (1963).

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73 For a useful summary of what constitutes Brady material, see Ira Mickenberg, A Practical Guide to Brady Motions: Getting What You Want, Getting What You Need, 3 (2008), available at http://www.ncids.org/Defender%20Training/2008%20New%20Felony%20Defender%20Training/BradyHandout.pdf. This paper was presented as part of a comprehensive training in North Carolina for recently-hired felony defense attorneys.

74 See 10 U.S.C. § 949 J(b).

75 For a discussion of commissions’ classified evidence procedures, see section III(C)(3)(a) of this paper.

76 See FED. R. EVID. 801.

77 See Jeremy A. Blumenthal, Shedding Some Light on Calls for Hearsay Reform: Civil Law Hearsay Rules in Historical and Modern Perspective, 13 PACE INT’L L. REV. 93, 93 (2001). This article provides a comprehensive overview of the reasons behind the different approaches common and civil law systems take towards hearsay. For an article dealing exclusively with the common-law prohibition on hearsay, see John H. Wigmore, The History of the Hearsay Rule, 17 HARV. L. REV. 437 (1904).

78 Blumenthal at 94.

79 David Wiessbrodt, et. al., Piercing the Confidentiality Veil: Physician Testimony in International Criminal Against Perpetrators of Torture, 15 MINN. J. INT’L L. 43, 58 (2006).

80 See Richard May and Marieke Wierda, Trends in International Criminal Evidence: Nuremberg, Tokyo, The Hague, and Arusha, 37 COLUM. J. TRANSNAT'L L. 725, 745 (1999)

81 Dissenting Opinion of Justice Pal (July 25, 1946), reprinted in 2 The Tokyo Judgment: The International Military Tribunal for the Far East (IMTFE), 29 April 1946-12 November 1948, at 630 (B.V.A. Röling & C.F. Rüter eds., 1977).

82 May and Wierda, supra n. 80.

83 While these judicial economy concerns drove the IMT & IMTFE to admit all types of hearsay, they were particularly important for their willingness to admit documentary hearsay. See May and Wierda, supra, n. 75 at 749.

84 See IMT Charter, Art. 19 & IMTFE Charter, Art. 13.

85 Prosecutor v. Tadic, Case No. IT-94-1, Decision on Defence Motion on Hearsay, PP 14, 19 (Aug. 5, 1996), reprinted in 2 Substantive and Procedural Aspects of International Criminal Law: The Experience of International and National Courts (Gabrielle Kirk McDonald & Olivia Swaak-Goldman eds. 2000).

86 Georges Anderson Nderubumwe Rutaganda v. Prosecutor, Case No. ICTR-96-3-A, ¶ 34 (May 26, 2003).

87 See ICTY Rules, R. 89(c); ICTR Rules, R. 89(c).

88 May and Wierda, supra n. 80 at 748.

89 See 2006 MCA § 949a(b)(2)(E)(i) and 10 U.S.C. § 949A(b)(3)(D)(i).

90 10 U.S.C. § 949A(b)(3)(D)(i).

91 Id.

92 2006 MCA § 949a(b)(2)(E)(ii).

93 Id.

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94 Elsea, supra n. 30 at 27.

95 10 U.S.C. § 949a(b)(3)(D)(ii).

96 Id. 97 Wigmore on Evidence. Page -1-. (c) 2008 TransMedia Productions, Inc. 98 Principle No. 2, Basic Principles on the Independence of the Judiciary 7th U.N. Congress on the Prevention of Crime and the Treatment of Offenders, Milan, Aug. 26-Sept. 6, 1985, U.N. Doc. A/CONF.121/22/Rev.1 at 59 (1985), available at http://www1.umn.edu/humanrts/instree/i5bpij.htm.

99 See Nienke Grossman, Sex on the Bench: Do Women Judges Matter to the Legitimacy of International Courts?, 12 CHI. . INT’L L. 647, 655 (2012).

100 See, e.g. M. Cherif Bassiouni, The Time Has Come for an International Criminal Court, 1 IND. INT’L & COMP. L. REV. 1, 34 (1991).

101 See IMT Charter, Art. 3 and IMTFE Charter, Art. 2 (showing how each tribunal’s judges were selected by the signatories of each tribunal’s charter).

102 Id. (containing no requirement of judges possessing any sort of qualifications or impartiality).

103 ICTY Statute, Art. 13; ICTR Statute, Art. 12.

104 ICTY Rules, R. 15; ICTR Rules, R. 15.

105 Judgment of 21 July 2010, Case No. IT-95-17/1 A, ¶ 189. These criteria require the ICTY’s judges to be free of both objective bias (party to a case, financial stake in outcome, render decision to advance cause with which personally involved) and subjective bias (judged by the standard of a reasonable, informed person; looks at the appearance of bias).

106 10 U.S.C. § 949g(a)(1).

107 10 U.S.C. § 948j(d).

108 10 U.S.C. § 948j(c).

109 10 U.S.C. § 949b(b)(2).

110 10 U.S.C. § 949f(b).

111 10 U.S.C. § 950g; 2006 MCA § 950g.

112 Id.

113 10 U.S.C. § 948j(a).

114 Marie Amann, Punish or Surveil, 16 TRANSNAT’L L. & CONTEMP PROBS. 873, 902 (2007).

115 For a transcription of the speech in which Pres. Obama made these remarks, see Jack Goldsmith, President Obama’s Two Answers on National Security, LAWFARE: HARD NATIONAL SECURITY CHOICES (Sept. 10, 2010, 8:55 PM), http://www.lawfareblog.com/2010/09/president-obama's-two-answers-on-national-security-law/.