The U.S. military will begin pre-trial hearings Tuesday for enemy combatants captured in the war on terrorism. Four people among the nearly 600 detained at the U.S. Naval Base at Guantanamo Bay, Cuba are set to appear before a military commission, all charged with conspiring to commit war crimes against the United States. The hearings are opening under extremely tight security as well as controversy over whether the trials will be fair.
Among those set to appear before this military commission is David Hicks, an Australian captured in Afghanistan and detained by the U.S. military here at Guantanamo for nearly three years. He, along with three others, will be the first defendants to face trial under an order issued by President Bush in 2001. That order set in motion a process not used by the U.S. military since World War II. It authorizes the Pentagon to bring charges against non-Americans accused of violating the laws of war, in this case conspiring with al-Qaida or the Taleban to attack the United States.
Security is so tight that the U.S. military here has barred television crews from recording images of the Guantanamo courtroom and building while proceedings are under way. But the hearings themselves will be similar in some respects to procedures used in American civilian courts, except that military-appointed lawyers will serve as prosecutors and defense. A five-member panel of military officers will weigh evidence and vote on the defendant's guilt or innocence.
"They are presumed innocent and the standard is they must be proven guilty beyond a reasonable doubt," says Navy Lieutenant Commander Susan McGarvey is a commission spokeswoman.
"Each accused will get a full and fair trial in the manner that is consistent with protecting our national security," she added. "They can cross examine each government witness as well as put on their own witnesses. They have the ability to offer evidence in addition to witnesses. So it's the normal U.S. standard that you'll see here in action."
But legal and human rights groups dispute that, arguing these commissions are heavily weighted in favor of the government and point out that President Bush has already labeled those detained at Guantanamo as terrorists.
"In theory, there's a presumption of innocence," says Stephen Saltzburg, general counsel for the National Institute of Military Justice. "Whether it will actually work in practice, I think it's hard to know. We may never know. Presumably, other countries are going to look at what we do here and if it's good enough for the United States, it should be good enough for everybody and that means it will good enough if American soldiers somewhere in the future are detained and prosecuted by some other country's military commissions."
The retired U.S. Army lawyer overseeing the commissions expects defendants to use these pre-trial hearings to challenge the credibility of the evidence against them, alleging it was gained through interrogation methods that would not be admissible in civilian court.
The presiding officer at these hearings or even a higher Pentagon authority would have to decide how to resolve those issues before any case could go to trial. The commissions do have the power to recommend the death penalty as punishment if a guilty verdict is reached.