By Donna Miles
WASHINGTON, July 12, 2006 – Military tribunals -- not courts-martial or civilian court procedures -- are the best way to try enemy combatants for war crimes, a senior defense official told members of the Senate Judiciary Committee yesterday. Daniel J. Dell'Orto, the Defense Department's principal deputy general counsel, testified before the committee as it considers the best way to try detainees after the U.S. Supreme Court voted down the use of military tribunals under existing law.
During yesterday's hearing, Dell'Orto pointed to the country's history of convening criminal tribunals other than courts-martial in wartime that dates back to the Revolutionary War. For more than two centuries, these tribunals have been "an indispensable tool for the dispensation of justice in the chaotic and irregular circumstances of armed conflict," he told the committee.
The military commission system considered by the Supreme Court in the case of Salim Ahmed Hamdan "fits squarely within this long tradition," he said. The Supreme Court ruled June 29 that military commissions for detainees charged with war crimes would violate the Uniform Code of Military Justice as well as the Geneva Conventions. The decision was based on the case Hamdan v. Rumsfeld. Hamdan, a former driver and bodyguard for al Qaeda leader Osama bin Laden, has been detained at Guantanamo Bay, Cuba, since 2002.
Hamdan's attorneys challenged the legality of the U.S. government trying him for alleged war crimes before a military commission rather than through a court-martial or civilian trial. While ruling that military commissions violate existing law, the Supreme Court specifically invited the administration to work with Congress to change the law so that they don't.
Lawmakers are working to hammer out a solution. Dell'Orto is joining Steven Bradbury, acting assistant attorney general for the Justice Department's Office of Legal Counsel, and others today for a second day of hearings on military commissions and tribunals. Today's hearing is before the House Armed Services Committee. Dell'Orto urged the senators yesterday to approve the military commission system as it is currently configured, calling it "a very expeditious way to move these trials very quickly."
Giving detainees the same or greater protections than service members and U.S. civilians receive would be nothing short of "ludicrous," Dell'Orto told the committee. "Alternative processes are necessary to avoid the absurd result of adopting protections for terrorists that American citizens do not receive in civilian courts, nor do our service members receive in courts-martial," he said.
Additionally, telling detainees before interrogation that they're entitled to legal counsel, that they don't need to answer questions, and that any answers they give could be used against them in a criminal trial would "greatly impede intelligence collection essential to the war effort," he said. A common misconception about the court-martial system is that it offers a lesser former of justice than those in the judicial system, Dell'Orto said. "But the opposite is actually true," he said.
Dell'Orto cited protections offered through the military justice system. Courts-martial often go farther than civilian courts to protect rights of the accused -- both "to protect in court those who protect us in battle and to avoid even the appearance of unlawful command influence," he said.