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School of Law symposium to examine military tribunals

Do trials for Guantanamo Bay detainees meet accepted standards of justice?

Attorney David Rivkin is a former prosecutor in the U.S. Justice Department.

As the U.S. Defense Department prepares to hear cases against 10 people charged with war crimes and held at the Guantanamo Bay Naval Base in Cuba, there is much debate about the ability of the accused to receive a fair trial. The fairness, and the legality, of the upcoming military tribunals will be discussed at a symposium on Friday, April 14, at the BU School of Law.

Military Commission Trial Practices: Effects on Due Process and National Security, sponsored by the Boston University International Law Journal, will take place from 9 a.m. to 12:30 p.m. in LAW Room 1270. The symposium, which consists of two panels and includes legal experts from across the country (see below), is free and open to the public.

Pretrial hearings are taking place for several people the United States has designated as enemy combatants. The defendants are among 490 detainees, most of whom were captured in Afghanistan during and after the 2001 war there and are accused of aiding al-Qaeda. President George Bush authorized the creation of the tribunals after the September 11 terrorist attacks in an effort to establish a judicial system that would balance the need for a fair process with the need to protect U.S. security.

Critics of the current military commission trial practices have long argued that they violate the U.S. Constitution because defendants are denied required legal protections, such as the evidence rules and appeal rights that are provided by all civilian courts. At tribunals, for example, evidence can be introduced through hearsay and a panel of military officers can convict a defendant by a two-thirds majority. Critics also point out that the United Nations has recommended that the Guantanamo Bay military prison and tribunals be shut down.

Washington, D.C., attorney David Rivkin, who will speak during Panel 2, Attorneys on the Ground: Implications of Current Military Commission Trial Practices, expects the military proceedings to be as fair as past international tribunals for suspected war criminals and court-martial trials for U.S. military personnel. “It’s important to understand that these are not kangaroo courts,” says Rivkin, an expert on international law and constitutional issues. “These are properly constituted bodies with a conscientious set of jurists. The judges are military officers who take their oaths very seriously.”

Rivkin, a former prosecutor with the U.S. Justice Department, believes that the military commission trials meet accepted standards of justice. “The difference between the tribunals and regular courts-martial are in three categories,” he says. “One, they can exclude the defendant from the proceedings — at appropriate times. Two, they can keep the proceedings closed, and three, they have more relaxed evidentiary standards. But everything else is the same: guilt beyond a reasonable doubt, the prosecution bears the burden of proof, and so on.”

Pentagon-appointed prosecutors have battled on issues of fair trial and due process in several pretrial hearings that began earlier this month. So far, the tribunals have been beset by procedural confusion and disorganization, including complaints about lack of translators in the case of Abdul Zahir, an Afghan national accused of injuring a Canadian journalist in a grenade attack.

Rivkin says that although proper procedures are far from clear, the hearings should continue. “You have to distinguish between growing pains and fundamental violation of constitutional rights,” he says. “It takes time to develop the precise guidelines. The notion that these people are going to be railroaded just doesn’t hold water.”

The Supreme Court is expected to rule in June on the legality of the military commission trials.

Participants in Panel 1, Legal Framework of Military Commissions, are Robinson Everett, a Duke University School of Law professor and former chief judge of the U.S. Court of Military Appeals, Louis Fisher, a constitutional scholar and senior specialist for the Congressional Research Service of the Library of Congress, and David Glazier, an associate professor of law designate at Loyola Law School, Los Angeles, and a research fellow at the Center for National Security Law, University of Virginia.

Participants in Panel 2, Attorneys on the Ground: Implications of Current Military Commission Trial Practices, are Madeline Morris, a professor at the Duke University School of Law and advisor to the chief defense counsel for Guantanamo detainees, and international law expert David Rivkin, a partner in the Washington, D.C., law firm Baker and Hostetler and a former legal and policy advisor for the Ronald Reagan and George H. W. Bush administrations.

A discussion period, along with a question-and-answer period, will follow each panel, and refreshments will be provided after the symposium.