Tuesday, August 05, 2008

What's the matter with the Military Commissions Act: Part 1

The first "military commission" is wrapping up in Guantánamo, with the trial of Salid Ahmed Hamdan.

The trial concluded and went to the "jury". What kind of jury? Well, this kind:
Six military jurors, who were handpicked by the Pentagon, began considering the case Monday after a two-week trial.
Nice to be able to pick your own jury from amongst your own people....

And who was on the jury?:
One Hamdan juror is an Apache helicopter pilot who has been shot at by insurgents during missions over Iraq, Kosovo and Panama. Another, an Air Force colonel, was asked no questions during the vetting process. The Navy captain heading the jury by virtue of seniority was privy to classified briefings about Afghanistan during the period when Hamdan was captured there. The alternate, an Army lieutenant colonel who was excused Friday when the trial concluded, conceded she had "a suspicion" that Hamdan must be guilty of something to have ended up imprisoned here.

Scott Silliman, a Duke University law professor and 25-year veteran of the Air Force Judge Advocate General corps, has criticized aspects of the military commissions but believes the jurors will deliberate without bias.

"They're all senior officers. This is a highly educated, sophisticated jury, very different from what you would find in Miami or anywhere else where they go by voter registration" to summon potential jurors, Silliman said.

As military officers responsive to a chain of command, he said, Hamdan's jurors are "well versed in setting aside raw emotion in determining fact" and will heed instructions from the military judge, Navy Capt. Keith J. Allred.
Yep. Like the alternate that was only recently dismissed. She certainly understood a lot about the criminal trial process.... And -- just wondering... -- what does a military officer "responsive to a chain of command" do in such a trial? Is it the job of subordinate officers to "determine fact" in their general duties? Or just follow orders....

And Silliman's "opinion" of Miami juries contains just a whiff of elitism, if not outright racism.

What about the trial procedure itself? Last week, we learned:
Khalid Shaikh Mohammed, the confessed Sept. 11 architect, wrote that Salim Ahmed Hamdan was a low-level support staffer who never joined al Qaeda and did not share bin Laden's ideology.

[...]

"He did not play any role. He was not a soldier, he was a driver," Mohammed said in answers to written questions from Hamdan's lawyers that were relayed to the six military jurors who will render a verdict. "His nature was more primitive (Bedouin) person and far from civilization. He was not fit to plan or execute."

[...]

What effect his written testimony will have on the Hamdan jury is uncertain. Attorneys for Hamdan had wanted Mohammed to testify live in court at the U.S. detention facility. They had told jurors there was "a significant chance" they would hear from the perpetrators of the attacks on the World Trade Center and Pentagon.

But Mohammed, after answering written questions, refused to meet with Hamdan's lawyers and declined to appear in court. His written remarks back up the defense's argument that Hamdan was a mere chauffeur uninvolved in terrorism. But it is uncertain if a military jury will take the word of an accused al Qaeda leader.
One of the reasons for insisting that defendants have means for compelling witnesses, and that they face their accusers (as well as the jury seeing defence witnesses), is that the jury gets to see the demeanour of the witness and decide for themselves as to the credibility of the witness. Here there is no such chance; while Mohammed's written answers back up Hamdan's claims, they are less persuasive than an examination, face-to-face in court, followed by cross-examination, would be.

But the MCA allows for witnesses to decline to appear. Even if they're in the next cell clock over....


Update

Missing link updated above.

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