<<previous  |  index  |  next>>

Interlocutory Questions Reviewed by Appointing Authority

The military commission rules allow for important legal issues occurring during the trial to be decided by the Appointing Authority, the executive branch official who brought the charges against the accused. The Appointing Authority must be the Secretary of Defense or his designate,³² and is responsible for supervising the military commissions, including approving charges and plea agreements.³³ The military commission rules provide that the head of the commission shall turn over for decision by the Appointing Authority “all interlocutory questions, the disposition of which would effect a termination of proceedings with respect to a charge.” The Presiding Officer may also certify other interlocutory questions to the Appointing Authority as he deems appropriate.³⁴

Important legal questions raised by defense counsel regarding such matters as the jurisdiction of the commission, the charges brought, evidentiary rulings that would result in the dismissal of a charge, or the elements of a crime would be decided not by a judge or judicial panel, but by the very same executive officer who initiated the charges and approved the prosecution, and who presumably believed he was acting in accordance with the law. This improper blurring of the functions of the prosecutorial and judicial roles violates the right to a trial by an independent and impartial tribunal under article 14 of the ICCPR. It also sharply contrasts with the U.S. military justice system, where the convening authorities (the analogue to the Appointing Authority in the military commission process) play a prosecutorial role (and may reduce sentences), but have no judicial authority whatsoever and therefore do not rule on questions of law.

Rulings on interlocutory questions could presumably be overturned by the commission review panel following the commission trial. Given that the review panel is appointed by the Appointing Authority, however, it is likely to be extremely reluctant to overturn a case-dispositive decision on which the Appointing Authority has already expressed its views.

Revisions to the commission rules made in April 2004 add a further complication to the role of the Appointing Authority. The chief prosecutor now answers to the Legal Advisor to the Appointing Authority and, in turn, to the Appointing Authority, both administratively and in terms of performance evaluations.³⁵ The prosecutorial function of the military commissions is thus subsumed within the Appointing Authority. Given the judicial powers of the Appointing Authority, who will rule on interlocutory questions, placing the office of the chief prosecutor within that of the Appointing Authority raises serious questions about whether the commission structure favors the prosecution on key matters of law that will directly affect the outcome of the proceedings.