Guantanamo Commissions Exceed International Standards
American Forces Press Service WASHINGTON, Aug. 26, 2004 - The spirited arguments offered by defense lawyers at the military tribunals show the cases against detainees charged with crimes will exceed the international standard for such tribunals, the legal adviser to the appointing authority at the Defense Department's Office of Military Commissions said here today.
Air Force Brig. Gen. Thomas L. Hemingway, in an interview with the Pentagon Channel and American Forces Press Service, said the commissions - which began Aug. 23 at Guantanamo Bay Naval Base, Cuba - are not unique and have a long history in America.
Military commissions go back to the Revolutionary War and were last used during and after World War II. "In this case, we have military commissions that have rules that have been adjusted for what we consider today's standard of justice," he said.
He said the commissions follow standard rules that international tribunals follow. "The government must prove its case beyond reasonable doubt," he said. "The defense has ability to call witnesses, to cross-examine, (and) they have the right to appeal."
The complicating factor in the commissions is that they are occurring as the global war on terrorism is still going on. The government may have to introduce classified information into the record. Doing so in open court would compromise that information, the sources of the information or the way the government collects the information.
The commissions now are trying individuals captured on the battlefields of the war on terror. Having the trials in Guantanamo is a good approach and allows for a fair trial with adequate safeguards, DoD officials said.
The defendants are represented by military counsel for free or they can hire civilian attorneys to represent them. Some have done so. "Our system of justice has always provided for a defense counsel for anyone accused of a crime, whether it be a crime in violation of a state, federal code or a war crime," Hemingway said. Nazi leaders tried at Nuremburg after World War II had U.S. legal counsel, he noted.
"This is no different," he said. "The international standard for tribunals calls for a defense advocate. We are complying with the international norms for fairness with these proceedings."
The commission process is fair to both the defense and prosecution, Hemingway emphasized. Both are held to the same standards they would be in a military court-martial or a civilian criminal trial, the general added.
Hemingway said the defense counsels are aggressively pursuing the defense of the people they represent. "I haven't seen any impairment of their ability . to defend (due to the nature of the forum)," he said.
Hemingway said there has been some concern about so-called hearsay evidence. "The rule of evidence we are using in these military commissions is precisely the same rule of evidence in international tribunals," he said.
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