Are US military tribunals fair?
Posted by sanityinjection on August 6, 2008
The big news today is the conviction of Osama bin Laden’s driver, Salim Hamdan, on terrorism charges in the first full military trial of a Guantanamo Bay detainee. I have seen a few articles on this, but (not surprisingly) I think the WashPost does the best job of presenting a complete picture of the trial:
http://www.washingtonpost.com/wp-dyn/content/article/2008/08/06/AR2008080601092_pf.html
There has been much concern expressed by civil liberties types about whether military trials will be fair to the defendants. These concerns are not totally without foundation. For example, the military tribunal considered statements Hamdan made during interrogation, which he was not warned could later be used against him. (A civilian criminal would have to have been read his rights, or “Mirandized”, and if he had not been, the statements would have been inadmissible in court.) However, the military judge did throw out certain statements made by Hamdan which he called “highly coercive”.
I find there is substantial evidence to suggest that the military is doing its best to conduct these trials fairly. Consider the following:
- The defense had the opportunity to question and dismiss jurors just as in a civilian trial.
- Defense lawyers were able to call eight witnesses to testify on Hamdan’s behalf, two of whom were permitted to testify in secret for their own protection, which is very rarely allowed in civilian trials.
- Unlike in civilian criminal trials, where defendants are often represented by underpaid and undermotivated public defenders, Hamdan’s lawyers are experts with experience defending clients in military tribunals.
- The verdicts did not come quickly but only after three full days of deliberation by the 6-person military jury.
- Hamdan was convicted of “material support of terrorism” but acquitted of a more serious charge of conspiracy.
- Contrary to international rumor, the charge Hamdan was convicted of carries a maximum sentence of life in prison and is not subject to the death penalty. There will be a sentencing hearing conducted very similarly to a civilian sentencing hearing.
- Hamdan’s conviction is automatically appealed to a military appellate court. Following that, Hamdan’s attorneys can further appeal to the civilian federal Court of Appeals and even to the Supreme Court.
I doubt that Hamdan will get a life sentence. Even prosecutors acknowledge that Hamdan is a relatively small fish in the terrorist pond. That’s why they wanted him to be the first guinea pig.
Article here: http://www.washingtonpost.com/wp-dyn/content/article/2008/08/06/AR2008080601092_pf.html
Sanity Injection 
Sister Benedict said
SanInj wrote: “Unlike in civilian criminal trials, where defendants are often represented by underpaid and undermotivated public defenders, Hamdan’s lawyers are experts with experience defending clients in military tribunals.”
I respectfully dissent.
The public defenders that I had the pleasure to know while in law school and while practicing law were “often” people who attended good universities and law schools and who cared very deeply about justice for their clients.
Public defenders are underpaid and governments are notorious for not compensating them in a timely manner. When I was considering becoming a public defender back in 2001 the pay in our area was about $30/hour. As I was making staggering student loan payments I knew it would be a huge sacrifice for me to work for that. When I heard that it would take more than six months for my state to pay me what I was owed, I threw the application away.
Public defenders are underpaid and aren’t being paid on a regular schedule, so this means they’re also overworked. Attorneys aren’t applying in droves but crimes are still being prosecuted, so those attorneys who are there to help have huge caseloads. They cannot possibly devote as much attention to each case as would a privately-funded attorney with law clerks and a paralegal and a secretary.
Unmotivated? I’m sure some of them are, and there’s no good excuse for intentionally doing a poor job when someone else’s money, freedom, or life is at stake. Rather than a lack of motivation I think it’s more likely that public defenders are simply overwhelmed.
If we as a country were serious about providing competent, quality defense attorneys for indigent people, perhaps we should insist that the states and the federal government pay these attorneys more and pay them in a timely manner. Public defender’s offices would get more applications and individual attorney caseloads would be more reasonable.
I don’t expect that a pay raise is going to happen soon. Taking care of poor people who might just be criminals is not a huge priority. Taking care of the attorneys who take care of these defendants is even less of a priority. There’s no benefit for a politician who wants to do so.
sanityinjection said
I had a hunch you might respond to that, SB 🙂 I didn’t say public defenders were undereducated, or that they were callous.
I stand by my statement, as I think your points about the diffculties public defenders face ultimately supports it as well as the point I was trying to make about the quality of military defense representation. (i.e., you will NEVER have a military trial in which the defense attorney falls asleep in the courtroom!)
Dan said
I also have the belief (quite possibly inaccurate) that Public Defender is often an early career choice to be used as a stepping stone on the way to more lucrative law practice.
I have every belief that most PDs are hard-working and intelligent people, but I also feel that their experience level may not be sufficient to go up against high-power DAs who tend to hang in remain in their position much longer as they compete for the bench or aim for elected office.
sanityinjection said
Update on the makeup of the military jury. The Miami Herald’s Carol Rosenberg reported on PBS’ “Newshour” that the jury consists of five men and one woman, three lieutenants, two colonels, and a Navy captain who served as the foreperson. They have advanced college degrees and have been in the military for about 20 years.
sanityinjection said
Sentencing Update: The prosecution is requesting a sentence of at least 30 years. The judge has already ruled that Hamdan should receive five years of credit toward any sentence for the time he has already served at Gitmo.
After sentence is passed by the jury, it is reviewed by a Pentagon legal official, who is allowed to decrease it but not increase it, before it is automatically appealed. Again, I suspect he will not receive that long a sentence. I’d bet on something like 20 years, including time served.
sanityinjection said
Sentencing update, part 2: The jury sentenced Hamdan to a total of 5 1/2 years. Having already been held 5 years and a month at Gitmo, he would only have five months left to serve.
Despite the light sentence, the Pentagon has to be happy with this because it futher indicates that the military juries are not going to be pushovers for the prosecution. The light sentence takes more wind of out of the sails of those arguing that the tribunals are unfair to the defendants.
Dan said
You’d be wrong 😉
Five and a half years seems way too short though, but I wasn’t on the jury and don’t know all the facts. I trust that the punishment was fitting…
There is still the question of whether the pentagon will let him go when he has completed the sentence. That seems odd- I thought that’s what the trial was about.
Dan said
doh… what are the chances? of you posting while I’m writing?
I know that there are cynics who believe that this trial was orchestrated to “prove” fairness, so that the tribunal can act with less oversight and more freedom on the cases where it just wants to throw away the key forever.
Are Military Tribunals Fair? : Stop The ACLU said
[…] also given adequate opportunity and access to challenge secret evidence. Many other points exist in favor of the fairness in this trial including the fact that Hamdan’s conviction is automatically appealed to a military […]