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Last Updated: Thursday, 29 June 2006, 16:46 GMT 17:46 UK
Analysis: Military tribunals
By Richard Allen Greene
BBC News, Washington

Nuremburg trials of Nazis, 1946
Opponents of secrecy cite the Nuremberg trials

The US Supreme Court has ruled that President George W Bush does not have the authority to order suspected terrorists to be tried by military tribunals - a blow to a key part of the administration's so-called war on terror.

The White House has refused to designate as prisoners of war many of the men its forces detained in Afghanistan in the wake of its drive to oust the Taleban in 2001.

It was preparing to have at least 10 men tried by military tribunals as enemy combatants.

But the Supreme Court said that would be a violation both of US military law and of the Geneva Conventions designed to safeguard the rights of prisoners of war.

The ruling means the administration will have to find an alternative to military tribunals - and President Bush has said he will work with Congress to try to solve the problem, suggesting that the debate over military tribunals may not be finished yet.

Opponents of military tribunals have argued that they violate guarantees provided by the constitution, that they are bad for Washington's image internationally - and that the president does not have the authority to order these men tried by military tribunals, which the Supreme Court backed.

Defenders of the plan say that military courts are not only necessary in time of war but that there is precedent for them under two of the country's greatest presidents, Abraham Lincoln and Franklin Delano Roosevelt.

There are a number of important differences between military tribunals and civilian courts:

  • Convictions in civilian courts must be unanimous, while the military tribunals proposed by Mr Bush would be able to convict by a two-thirds majority

  • Different rules of evidence apply, with lower standards for admission in military tribunals

  • Defendants are not guaranteed the right to appeal against convictions in military tribunals

  • Civilian trials must be open to the public, while military tribunals can be held in secret.

Some critics of military tribunals warn that, in general, many of the protections afforded to defendants in civilian courts do not necessarily apply in military tribunals.

But US Department of Defense guidelines for "Global War on Terror" tribunals specify that defendants have the right to a lawyer, to know the charges against them, and to examine the evidence, among other safeguards guaranteed in civilian courts.

There is another key difference between the two types of trials: legally, military tribunals are not courts - they are military commissions, which is why different standards apply.

The case in favour

Defenders of military tribunals argue that the United States is at war with terrorists, and that in times of war, enemy aliens are never afforded the protections of the US legal system.

Enemies have been tried by military courts since before the founding of the US - George Washington used them during the Revolutionary War, and the practice continued throughout World War II.

Advocates of military justice argue that the US is not carrying out a law-enforcement operation in Afghanistan, but a military one.

President Bush's order makes clear that he wants due process and the right to counsel for terrorists
John Dean

For the armed forces to seize an enemy and turn him over to the court system would be unprecedented and absurd, they say.

They argue that history shows that military tribunals can act fairly, as in the case of the Hunter Commission, the tribunal that convicted the conspirators behind Abraham Lincoln's assassination.

And they say the Supreme Court has ruled in favour of the use of tribunals in a key World War II case concerning German saboteurs caught in the US.

John Dean, a Nixon-era White House counsel, points out that the Bush order to try suspected terrorists in military tribunals actually guarantees defendants more rights than would normally be the case in such trials.

"President Bush's order makes clear that he wants due process and the right to counsel for terrorists," he argued in a column for online legal publication FindLaw.

Like other defenders of the plan, Mr Dean says that secret trials can be justified by the need to protect the intelligence sources that may provide prosecution evidence.

And he says that secret tribunals would provide protection for people involved in the case - whereas jurors in a civilian trial of terrorists, for example, might be forced to go into hiding after the trial for fear of revenge attacks.

The case against

Opponents of military tribunals list as many reasons to avoid them as defenders do to promote them.

Even before the Supreme Court ruling in June 2006, some legal experts were arguing that Mr Bush did not have the authority to establish them.

Rather than being stigmatised as terrorists, defendants... may be seen as political prisoners - victims, not perpetrators
Joanne Mariner,
Human rights lawyer

The Lincoln and Roosevelt-era military tribunals took place in time of war, they point out, but Congress has not officially declared war in this case, so the president cannot assume wartime powers.

Presidential war powers are invariably an issue for heated debate during times of US military conflict, especially as Congress has not declared war since 1942.

Advocates of military tribunals say congressional authorisation for Mr Bush to use all necessary force against those he decides "committed or aided the terrorist attacks" is the equivalent of a declaration of war.

Opponents of tribunals also argue that secret trials would be bad public relations for the United States.

Human rights lawyer Joanne Mariner argues that the "outcome of military proceedings will enjoy none of the legitimacy of results reached in normal civilian trials.

No country in Europe could extradite detainees to the United States if there were any chance they could be put before these military tribunals
Spanish prosecutor

"Rather than being stigmatised as terrorists, defendants... may be seen as political prisoners - victims, not perpetrators."

Some European countries have made it clear that they will not extradite suspects to the US unless they have a guarantee the defendants will not face a military tribunal.

One Spanish prosecutor was categorical in his opposition: "No country in Europe could extradite detainees to the United States if there were any chance they could be put before these military tribunals."

The US has itself condemned military tribunals of its citizens in other countries, such as that of Lori Berenson, who was convicted of aiding terrorists in Peru.

US President Franklin Delano Roosevelt
FDR tried Germans in military tribunals
Finally, the secrecy aspect of military courts concerns not only opponents, but even defenders such as Mr Dean.

In the case of the German saboteurs, the secrecy of the trial enabled the FBI and Justice Department to hide the fact that the convictions rested on the evidence of an informer among the infiltrators.

Six of the eight Germans were electrocuted on the day of their conviction, while the prosecution reneged on a deal to pardon the informant - who was sentenced to 30 years in prison. He served six years before being pardoned by President Harry Truman and being deported.

Those who argue for public trials point to the example of the Nuremberg trials after World War II.

Those trials, they say, showed the world the evil the Nazis had done.

Entering similar evidence of terrorist evil into the historical record would help convict them in the all-important court of public opinion, as well as in whatever court eventually tries them.

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