David Flint

President Obama: “No we can’t.”

President Obama’s decision to retain Guantanamo Bay and trial by military commissions is a vindication of the stand taken by both George W Bush and John Howard.

It shows that those who were so vociferous about David Hicks’ trial were wrong. In fact Hicks would have been better advised not to have so long opposed a military commission trial, but instead to have negotiated a plea bargain from the beginning. He would have been home sooner, and could have challenged any incarceration. 

It is true that a military commission trial does not duplicate the American domestic criminal justice system, but this does not mean it is unfair. To the American public, the criminal justice system seems today to be less about justice and more about technicalities, and excusing behaviour by the sane on sociological and psychological grounds. As in Australia, the pendulum has swung too far in over protecting the accused. 

The result is a serious decline in the quality of life in our cities, and a crisis in confidence in the ability of the state to perform its fundamental duty – the provision of law and order. 

But even if this is the way to run the criminal justice system, it is surely no way to run a war.  

The danger in extending the current indulgence of the accused to the conduct of war was well demonstrated under the Clinton administration. 

Even after the bombing of the World Trade Center in 1993, and subsequent terrorist outrages elsewhere, President Clinton allowed Bin Laden to escape from Khartoum without his plane being intercepted.  This was because FBI legal advice indicated that crucial evidence could not be used in a US criminal court. 

Bin Laden was thus able to continue with impunity, culminating in the horror of 9/11. Understandably, President Clinton is said to consider this his greatest mistake.

The argument that the Guantanamo accused should be tried in a domestic US court would mean most if not all of the evidence against them would be disallowed under an exclusionary rule created in recent decades by the Supreme Court. This provides that any evidence secured in breach of the Bill of Rights is not admissible – the argument is a jury would be easily prejudiced by such evidence.

This does not of course mean that any excluded evidence is worthless, or it would not be admitted in the courts of other countries.

But it is hardly realistic that the US Bill of Rights, as reinterpreted by the most liberal judges, should apply to war trials.

In such a trial the accused will still be able to challenge any evidence – for example that an admission was obtained under torture. The presiding officer will weigh this, and consider any evidence tendered which suggests impropriety in evidence gathering.  Moreover, his decision can be changed by a panel.  

President Obama says Congress will be asked to change the law to make such evidence inadmissible. That would be a mistake. The Commission should be allowed to hear all evidence, as judges in France and Indonesia can. He or she will weigh it against allegations that it was made under torture. What is torture and what is no more than robust questioning in borderline cases is a matter of degree. Setting down an exclusionary rule will be a boon to the defence bar, and further delay the final resolution of these matters. The Commission should be able to consider everything.

This is after all military justice, the sort of justice we and our allies dispensed during and after the Second World War. The presumption of innocence and the need for proof beyond reasonable doubt will still prevail. The accused after all will be legally represented.  Any decision will not be final.

There is one other possible safeguard. After any military commission trial, an accused could go to the US Supreme Court and argue that the trial was conducted in breach of the relevant Geneva Convention the guarantees recognized as indispensable by civilized peoples did not  apply.  It appears still open to the Court to rule this way.

We should not forget one other thing. These trials will be conducted by officers from the army of our close ally, the most powerful country in the world, and a country which has shown itself to be remarkably benign and forgiving to its former enemies.

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