Due Process Protections Afforded Defendants: A Comparison between the Proposed U.S. Military Commissions and U.S. General Courts-Martial (Human Rights Watch Press Release, New York, December 17, 2001)

December 17, 2001

Due Process Protections Afforded Defendants:

A Comparison between the Proposed U.S. Military Commissions and U.S. General Courts-Martial

Due process protections	Military Commissions Under the President’s Military Order of November 13		General Courts-Martial under the Uniform Code of Military Justice (UCMJ) and Rules for Courts-Martial (RCM)
Persons Subject to Military Jurisdiction	Section 2	Any non-citizen who at “relevant times” is or was a member of Al Qaeda; engaged in or aided acts of international terrorism; or who knowingly harbored such a person. The relevant times are not specified, and international terrorism is not defined.	Arts. 2 & 18	Members of armed forced and certain related personnel; prisoners of war in custody of armed forces; persons who by laws of war are subject to trial by military tribunal. These latter terms are not expressly defined.
Applicable Offenses	Sections 1 & 4	The Order refers both to “violations of laws of war and other applicable crimes” as well as to “any and all offenses triable by military commission”. None of these terms are defined.	Art. 18	Any offense made punishable by the UCMJ, which enumerates offenses.
Arrest/ Indictment	Section 2 & 3	The Order grants executive extraordinarily broad discretion. If president determines in writing that he “has reason to believe” an individual falls within the commission’s jurisdiction, the Secretary of Defense shall detain that individual. No provision made for separate charging or indictment procedure. Detention without trial could be indefinite.	Arts. 9, 32 & 34	No arrest without probable cause. A court-martial cannot be convened until a thorough and impartial investigation and hearing, serving functions similar to that conducted by a grand jury. The accused and counsel may be present and cross-examine adverse witnesses.
Right to counsel	Section 4(c)(5)	Yes. However, the Order does not state whether a defendant can select his/her own defense attorney or whether one will be appointed by the Secretary of Defense. It is not clear whether legal aid is available.	Art. 27 & 38, UCMJ	Yes. Military counsel, provided gratis, will automatically be provided, or the accused can request a specific military counsel by name. The accused may choose to be represented by civilian counsel, but at his expense.
Obligation of the Prosecution to Disclose Evidence	Section 4	The Order is silent about disclosure obligations on the prosecution. The Secretary of Defense will decide if the accused will be informed of the nature of the charges filed against him or her. The Secretary of Defense will also decide whether and to what extent exculpatory evidence should be disclosed.	Rule 701, RCM	In addition to evidence from the pre-trial investigation, the accused has broad discovery rights, including mandatory disclosure by prosecution of all documents accompanying charges, names of witnesses and their statements, all statements made by the accused, and all evidence seized from the accused. Rule 505 of the Military rules of Evidence contains provisions regarding the disclosure of classified information.
Presumption of innocence		The Order is silent about fundamental legal presumption.	Art. 51, UCMJ	The accused is presumed innocent until guilt is established by legal and competent evidence.
Standard of proof	Section 4	The Secretary of Defense will decide on the applicable standard of proof. The Secretary could decide that the commission convicts ‘on the balance of probabilities’ rather than ‘beyond reasonable doubt’.	Art. 51, UCMJ	Guilt must be established beyond reasonable doubt.
Verdict/ Sentencing	Section 4(c)(6) & (7)	The order specifies that unanimity is not required. A conviction can be by two-thirds majority of the commission members at the time the verdict/sentence is handed down, provided that a majority of members are present at this time. If the necessary votes for a conviction are not obtained, the defendant is acquitted.	Art. 52, UCMJ	In offenses in which the death penalty is mandatory, a verdict must be unanimous among all panel members present when the vote is taken. For offenses for which punishment is life or more than 10 years, the vote must be by 3/4 of panel members present. For all other offenses, 2/3 of panel vote is required. Voting is by secret ballot.
Imposition of the death penalty		Yes. The same two-third sentencing requirements apply even for the death penalty.	Art. 52, UCMJ	No person may be sentenced to death unless the offense is expressly made punishable by death in the UCMJ.
Public trial		Secret proceedings are permitted. This is one of the rationales for the Military Commission.	Rule 806, RCM	Trials are public. “Opening courts-martial to public scrutiny reduces the chance of arbitrary or capricious decisions and enhances public confidence in the court-martial process” (Rule 806, RCM). Rule 505 of the Military Rules of Evidence provides procedures to protect classified information, including closure of trial proceedings when classified information is introduced.
Right of appeal	Section 7(b)(2)	The Order expressly precludes independent or judicial review. The President and/or Secretary of Defense can review a matter for final decision.	Arts. 66 & 67	Two levels of appellate review are provided, the second to the U.S. Court of Appeals for the Armed Forced, which is composed of civilian judges. The accused may then seek review by the U.S. Supreme Court through a petition for a writ of certiorari.