Must US allow Guantánamo detainees to attend own trial?
The right to be present throughout one's own trial – a cornerstone of American law – is a key issue confronting Congress as it works to create a fair-trial process for suspected Al Qaeda war criminals.Skip to next paragraph
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A month after the US Supreme Court struck down the Bush administration's plan for military commissions at the Guantánamo Bay, Cuba, detention camp, lawmakers are weighing how to create a system that protects basic rights of the accused without undermining America's war on terror.
Some analysts see a ready-made template in the Uniform Code of Military Justice used by the armed forces. The Bush administration and its supporters say the UCMJ guarantees too many rights that might be exploited by Al Qaeda defendants to compromise US intelligence sources and methods.
Any newly drafted military-commission process must confront a range of fair-trial issues including how to handle classified evidence and hearsay, and whether to admit as evidence information obtained under harsh interrogation tactics.
But the most discussed issue in the Supreme Court's June 29 decision was the right to be present at one's trial.
Writing for the majority, Justice John Paul Stevens called it "one of the most fundamental protections" in the UCMJ. "The jettisoning of so basic a right cannot lightly be excused...," he wrote.
Although he wrote the majority opinion, only three other justices agreed with Justice Stevens that Common Article 3 of the Geneva Conventions requires that a defendant be present at his entire trial. Justice Anthony Kennedy, who provided the key fifth vote in the high court's commission decision, declined to decide that question. He did say, however, that he found it "troubling" that President Bush's commission regulations created the possibility of a conviction and sentence based on evidence a defendant had not seen or heard.
Under the commission process set up by the Defense Department, defendants and their civilian lawyers could be excluded from key parts of the trial to permit the introduction of classified evidence. The commissions sought to minimize the unfairness of this provision by allowing appointed military lawyers to represent each accused war criminal. The military lawyers would be granted access to all classified evidence and to the entire trial process – but the military lawyers would be barred from discussing with their clients the content of the classified evidence and classified portions of the trial.
Retired Rear Adm. John Hutson, a military justice expert and dean of Franklin Pierce Law Center, summed up the potential problem in a recent Senate hearing. He said the exclusion policy might lead to a situation in which the US government would "say to the accused: 'We know you're guilty, we can't tell you why, but there's a guy, we can't tell you who, who told us something; we can't tell you what, but you're guilty.' "
Supporters of the administration's approach say its commissions included a provision requiring that no evidence or testimony be admitted that would render the trial less than "full and fair." They say allegations of unfairness could be thoroughly examined on appeal after a conviction, rather than based on speculation about what might happen at a trial.