Morris Davis. “The Guantánamo I Know”. New York Times. June 26, 2007 – Some imply that if a defendant does not get a trial that looks like Martha Stewart’s and ends like O. J. Simpson’s, then military commissions are flawed. They are mistaken. The Constitution does not extend to alien unlawful enemy combatants. They are entitled to protections under Common Article 3 of the Geneva Conventions, which ensures they are afforded “all the judicial guarantees which are recognized as indispensable by civilized peoples.”
Justice John Paul Stevens, in the Hamdan decision that rejected an earlier plan for military commissions, observed that Article 75 of the Additional Protocol to the Geneva Conventions defines the judicial guarantees recognized as indispensable. A comparison of Article 75 and the Military Commissions Act of 2006 shows military commissions provide the fundamental guarantees.
Each accused receives a copy of the charges in his native language; outside influence on witnesses and trial participants is prohibited; the accused may challenge members of the commission; an accused may represent himself or have assistance of counsel; he is presumed innocent until guilt is established beyond a reasonable doubt; he is entitled to assistance to secure evidence on his behalf; he is not required to incriminate himself at trial and his silence is not held against him; he may not be tried a second time for the same offense; and he is entitled to the assistance of counsel through four stages of post-trial appellate review ending at the United States Supreme Court.
One myth is that the accused can be excluded from his trial and convicted on secret evidence. The administrative boards that determine if a detainee is an enemy combatant and whether he is a continuing threat may consider classified information in closed hearings outside the presence of the detainee. But military commissions may not. The act states, “The accused shall be permitted … to examine and respond to evidence admitted against him on the issue of guilt or innocence and for sentencing.” Unless the accused chooses to skip his trial or is removed for disruptive behavior, he has the right to be present and to confront all of the evidence.