Here’s an interesting note from the WSJ law blog:
[Military justice expert Michael] Navarre also believes that, given Judge [Navy Capt. Keith] Allred’s jury instruction, the not guilty verdict on the conspiracy charge could mean tough-going for the prosecution in future detainee cases. Judge Allred instructed the Hamdan jurors that, to convict Hamdan of conspiracy, they had to find that his actions were directed towards engaging civilians or other protected targets, such as soldiers removed from the battlefield due to injury or religious personnel.
“If the Hamdan case sets precedent for defining when a detainee conspired to commit a violation of the law of war, the government may have a difficult time proving conspiracy charges against all but the top level detainees,” said Navarre. “Smaller players, whose only involvement was battlefield contact with U.S. forces, may not have committed offenses within the instruction given by Judge Allred.”
What this means is that far from the cries of misjustice, the Guantanamo trials provide far more due process than any military tribunal before it.
It’s a point underscored by Major Kyndra Miller-Rotunda, a former Judge Advocate General (JAG) officer who served three tours of duty, including one at Guantanamo Bay, Cuba, in Joint Task Force (JFT) 160 — which conducted interrogations of detainees — and another as a prosecutor at the Office of Military Commissions. I just finished reading her book on the experience, titled “Honor Bound: Inside the Guantanamo Trials.”
I first heard the name Major Kyndra Miller-Rotunda while listening to the Dennis Miller radio show, and what she said caught me off guard.
According to Maj. Rotunda, the detainees at Guantanamo Bay received better treatment than were demanded for Prisoners of War (POWs) by the Geneva Conventions (which, technically, and for solid reasons, the Bush administration had previously declined to grant members of the Taliban and al Qaeda).
I, in the words of a caller to the Miller show, “learned more about the subject of Guantanamo detainees in five minutes” than I had in seven years of self-education on the subject from countless news articles and commentaries.
Here’s another example, that’s almost verbatim from Maj. Rotunda-Miller’s book, in which the Guantanamo detainees receive better treatment and process than not only past POWs, but better than European citizens and sometimes better than U.S. citizens, including those in our federal penitentiary system:
[Maj. Rotunda-Miller]: Under civilian law, it is illegal for two or more people to plan a crime even if they are ultimately unsuccessful in the attempt. U.S. law makes the agreement of the crime itself a crime. The steps for committing this crime are known as “overt acts.”
However the law that applies to detainees at Guantánamo Bay is more stringent than conspiracy laws that apply to U.S. citizens. Prosecutors at the Office of Military Commissions [OMC] applied there own definition of conspiracy by requiring that the particular detainee himself commit the overt act.
Under this strange definition, the detainee could conspire to commit another September 11 attack with members of Al Qaeda and not be held liable for his role in the conspiracy unless prosecutors prove that the detainee himself took steps toward carrying out the attack.
Therefore, rules that apply to U.S. civilians to commit conspiracy crimes are more likely to result in criminal convictions than those applied to detainees held at Guantánamo Bay.
Indeed, the United States Congress, in the wording of the Military Commissions Act of 2006, labeled conspiracy as any person “who conspires to commit one or more substantial offenses triable by military commissions under this chapter, and who knowingly does any overt act to effect the object of the conspiracy…”
Therefore the U.S. Congress has made clear that alleged terrorists in Guantánamo Bay are much harder to convict on conspiracy charges in U.S. citizens — prosecutors must prove that the particular detainee himself “knowingly” committed an overt act.
It is ironic, adds Maj. Rotunda-Miller, that Hamdan, a now convicted terrorist, gets better trial and treatment than did the convicted soldiers, including Lynndie England, charged for heinous acts at Abu Ghraib.
Adds Lt. Col. Fred Frost(ret.) of the USMC:
The Uniform Code of Military Justice and military courts are acceptable for our own military personnel accused of transgressions but not for perpetrators of war crimes and terrorism. If military courts are fair and balanced enough for our serving sons and daughters, why are they not adequate for our sworn enemies?
Why indeed.
Rather than continue with what would be an incredibly long post I’m instead going to add more updates from my education by Maj. Rotunda-Miller in the days and weeks ahead. You can search on the tag Major Rotunda-Miller.