What We Owe the World are Thoughtful War-Crimes Trials That Do Justice without Unduly Jeopardizing Innocent Lives by Compromising Vital Intelligence Comment.

Authors

Sherry M. Barnash

Abstract

In Hamdan v. Rumsfeld, the United States Supreme Court held the military commission convened to try accused terrorist Salim Ahmen Hamdan was unlawful. The Court concluded the Government could not lawfully proceed using established commission rules because the commission differed from courts-martial and did not follow certain aspects of the Geneva Convention. One procedure the Court found troubling was a provision in the Military Commission Order No. 1 which allowed the exclusion of the defendant and his civilian counsel from certain proceedings. Yet, denial of access was nothing new, as three decades prior Congress enacted the Classified Information Procedures Act (CIPA). CIPA provides for judicial review to prevent such disclosures and allow the Government to withhold national defense information from a defendant. Our system of justice holds all are deemed innocent until proven guilty. But, when the prosecution involves sensitive information or classified methods, the government’s interest in protecting those secrets must be balanced against the accused’s access to a fair proceeding. With the enactment of CIPA, courts have been able to balance these conflicting interests. In response to the Hamdan ruling, Congress passed legislation expressly establishing military commissions and authorizing CIPA-like procedures for the protection of war effort information. Article 51 of the United Nations Charter recognizes a sovereign nation’s inherent right to self-defense. Post-9/11 terrorist attack, President Bush issued military orders outlining the manner in which captured enemy combatants would be detained and tried. Thus, balancing the desire to provide a fair trial with the duty to protect national security. The Uniform Code of Military Justice (UCMJ) authorizes the use of military commissions and grants the President the authority to establish governing procedures. The Court did not hold the procedures outlined for those commissions were ‘strictly contrary to or inconsistent with’ other UCMJ provisions.

Publisher

St. Mary's University School of Law

Recommended Citation

Sherry M. Barnash, What We Owe the World are Thoughtful War-Crimes Trials That Do Justice without Unduly Jeopardizing Innocent Lives by Compromising Vital Intelligence Comment., 39 St. Mary's L.J. (2007).
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol39/iss1/5