First US war trial since World War II tests limits of fairness in terror cases

The commission trials mark the first time since 1948 that the US has used such extraordinary measures in attempting to bring a suspected war criminal to justice. The military commission procedure was two and a half years in the drafting.

The end result is a stripped-down judicial system run by the military without many of the safeguards present in either the US civilian courts or under the Uniform Code of Military Justice, the legal system that applies to the US armed forces.

Some legal experts say the commission rules violate international accords that require judicial systems to afford the same level of due process to suspected war criminals as that nation provides for its own military defendants. Others say the commission process is a necessary and reasonable accommodation to help the US fight and win a war against a lawless enemy.

If the government granted Al Qaeda suspects the same trial rights as US military defendants, it would provide a window to US vulnerabilities, some analysts say.

"You are giving the terrorists a road map of the government's case, its interrogation methods, the government's sources of information," says Margaret Stock, a military law expert who teaches at the US Military Academy at West Point.

"We know from documents that have been released that Al Qaeda is a sophisticated student of the American judicial process," she says. "Part of their strategy is to use that system against us."

Guaranteed protections under the commission process include the presumption of innocence, the right to decline to testify, and appointment of military defense counsel at no cost to the defendant. Defendants can also hire their own counsel.

There is no right of appeal to a judge independent of the executive branch. There is no right of a defendant to confront or even be advised of all evidence against a suspect when that evidence is considered "protected information" by military authorities. And military officials reserve the right to monitor attorney-client conversations, though commission rules forbid military prosecutors from gaining access to such information.

Kevin Barry, a retired Coast Guard captain and a director of the National Institute of Military Justice, says the US has a long history dating back to the Revolutionary War of using commissions to try suspected war criminals. But writing in the Chicago Tribune recently, he said the current commission rules fail to provide the same level of fairness endorsed by prior presidents and generals dating back to George Washington.

"The tribunals now being assembled in Guantánamo Bay do not pass the judicial smell test," he says. "Whatever they are, they aren't 'military commissions,' as that term has been used and understood in American military law for more than 225 years."

Mr. Barry says the Pentagon and its commission should abide by the same trial rules Congress has endorsed in the Uniform Code of Military Justice.

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