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The Injustice of Military Courts

25 Nov 2001; modified slightly 19 Jan 2002.

In October, the Bush administration asked Congress for the power to detain non-citizens permanently by decree. This one request among all the proposed assaults on our freedom was rejected by Congress. Now Bush has a new plan to get the same result: to try alleged terrorists in military courts. That is to say, in courts where the prosecutor, the defense lawyer, and the judges all work for Bush.

The administration defends this plan by saying that the perpetrators of such horrible crimes don't deserve any rights. Let's agree that what the perpetrators deserve is punishment; what do people falsely accused of participation deserve?

That is always the hard question. If we could only be sure that the accused are really guilty, shoddy trials would not matter--we wouldn't need trials at all. But accusations against innocent people happen with terrible regularity. That is why there is counsel for the defense. That is why the accused are presumed innocent. That is why they have legal rights.

Civilian courts don't have a great record of protecting the falsely accused. Most defense lawyers are not like the famous ones that you may have seen on TV; neither are most judges. Public defenders are overworked and barely have time to attend to their cases. Americans have been convicted of murder and sentenced to death while their lawyers dozed in court. Over 80 Americans have been released from death row in recent years, after DNA evidence proved their innocence beyond a reasonable doubt.

The danger of false convictions is especially great when politics enters the case. The US has a history of executing union leaders and political dissidents after trials that met the standards of the Soviet Union--including the Haymarket martyrs (fighting for the radical goal of an 8-hour work day) to Sacco and Vanzetti (anarchists convicted of a nonpolitical murder based on a lack of evidence). False accusations against political activists continue today, as police brutally attack protestors and then arrest them for various fabricated crimes.

Recognizing this tendency, we should now be planning extra efforts to ensure that we do not railroad supposed "terrorists" based on shreds of evidence. Instead, Bush plans to do the opposite: use military courts to trample the rights of the accused.

Military courts are unfair in several ways. One is that the accused does not get a chance to confront the prosecution's testimony. You have little chance of catching a prosecution witness in a lie if they won't tell you what he said. The defense can't even subpoena witnesses, but must ask the prosecution to do so as a favor. Even the usual standard of proof is missing--a conviction can be based on merely suggestive evidence that could easily exist for an innocent person.

But the biggest problem of military courts is known as "command influence." Instead of an independent judge and a jury of citizens, the court has a panel of officers. These officers are part of the military command structure--reporting to the same commanders that decided to prosecute, and hand-picked by them (picked, perhaps, for readiness to convict). The defense lawyer is also an officer, part of the same command structure. If the commanders want a conviction, these officers know their careers are on the line, so they usually comply with the demand. No wonder it is common for military trials to yield absurd results.

What justification is there for subjecting American soldiers to such injustice? The usual reason offered is the maintenance of discipline. Without asking whether that is really sufficient justification, let us simply note that it only makes sense in regard to those serving in the US armed forces. Maintaining iron discipline in the ranks of Al Qa'ida is not supposed to be our goal.

You may know that you do not participate in Al Qa'ida, but you cannot be sure you will not be accused of participating. If you are a non-US citizen falsely accused of some connection with terrorism, thanks to Bush you won't even have a fighting chance to clear your name. Your judges will be working for Bush. "Your" lawyer will be working for Bush. In the end, if Bush wants you convicted, you will be.

The failure to protect the falsely accused will taint the whole proceedings, spreading doubt for every defendant. Suppose that some of the accused really are guilty; will we, the public, be able to feel their guilt has been established? Not after a military court. A scrupulous trial will demonstrate their guilt to the world; a slipshod trial will leave room for doubt. Posterity will be forever denied the basis to be sure that justice was done.

Although this plan applies only to non-citizens, it will ultimately endanger the rights of US citizens as well. That's because it carries a basic assumption that there is no need to be careful in determining whether those accused are really guilty. Once we accept that assumption, its application to everyone will tend to follow.

The accused deserve fair trials in case they are innocent. The US needs fair trials so a suspicious world will respect its actions. The September 11 victims' families and the American public deserve fair trials so they can be confident that the real perpetrators have been punished.


For more information about the injustice of military courts, see the book Military justice is to justice as military music is to music, by Robert Sherrill. The evils are so great that I can barely begin to do justice to them.

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