Panel Chosen for Sentencing Portion of Detainee Trial

By Cheryl Pellerin

American Forces Press Service

NAVAL STATION GUANTANAMO BAY, Cuba, Feb. 16, 2011 – A military commission panel of officers made up of nine men and three women will determine the sentence detainee Noor Uthman Muhammed will serve after pleading guilty yesterday to charges of conspiracy and supporting international terrorist groups, including al-Qaida.

Fifteen potential panel members arrived here from military bases around the world, and Noor’s defense team objected to six of them, whittling their number to nine. The panel must contain at least five members.

The members, whose identities the court protects, include a male Army colonel who will act as panel president, a male Navy captain, a female Air Force colonel, a male Air Force colonel, a male Air Force lieutenant colonel, a female Air Force captain, a male Navy chief warrant officer, a male Army major and a male Army lieutenant colonel.

These service members will hear testimony over the next day or so before deliberating and conferring a sentence in the sixth conviction produced here by the commission since 2002.

“All six of our cases have been foreign fighters who violated the laws of war overseas in or near an operational background … where we have armed forces,” Navy Capt. David Iglesias, a spokesman for the military commission prosecutors, told American Forces Press Service.

Military commissions have had narrow jurisdiction, addressing only foreign nationals -– called alien enemy unprivileged belligerents -- who violate the laws of war, said Iglesias, himself a prosecutor and a former U.S. attorney. Because of their limited scope, he added, the military commission is “looking only at a small universe of 60 possible cases among the 172 detainees” now being held at the detention facility here.

Unlike U.S. courts, the military commission convened to prosecute the government’s cases against some of the detainees held here has roots dating back to the American Revolution and long experience dealing with war crimes, Iglesias said.

“The Justice Department has a 35-year history of trying terrorism cases, going back to the mid-1980s. It does not have a long history of prosecuting war crimes,” he said. “The U.S. military has a history of prosecuting war crimes going back to the Revolutionary War in the 1770s.”

Such laws have been codified over time in documents such as the Hague Conventions of 1899 and 1907, among the first formal statements of the laws of war and war crimes in international law, and in the Geneva Convention of 1949, Iglesias said.

Among the centuries-old concepts are that fighters engage only with other fighters and not with civilians or the sick or wounded, and that churches, mosques, schools, hospitals and cultural centers are protected places.

Terrorists don’t wear uniforms that make them recognizable from a fixed distance, Iglesias noted, and they don’t have a command structure in which one person is in charge of the duties of his or her men. “They don’t recognize the laws of war,” he added.

The last time the United States convened military commissions was at the end of World War II, he said.

“We set up many commissions to try war criminals in the European theater, most of whom were Nazi soldiers, and in the Pacific theater. And then there was 60 years of silence, until 9/11,” Iglesias said.

Some critics of military commissions complain that their legal requirements didn’t stand up to those observed by civilian courts or the Uniform Code of Military Justice. That changed in 2009, Iglesias said.

“There was a Military Commissions Act of 2006 that our leadership thought did not represent the type of due process that we have historically recognized in this country,” he acknowledged. The act was reformed and signed by President Barack Obama in 2009. Defense Secretary Robert M. Gates signed the foreword to the revised rules.

The new act “gives greater rights to detainees and makes it more difficult for either side to use hearsay evidence,” Iglesias noted, but the new rules don’t make military commissions identical to trying a criminal case, he added.

In many cases, he explained, the government’s burden is much more difficult because of the enormous amount of classified information that’s used in cases against war criminals. “There may be witnesses overseas that foreign governments don’t want to produce,” he said, “so there has to be a way for the government to introduce evidence that in a normal court would be prohibited.”

With that exception, he added, there’s very little difference between a court-martial case and a military commissions case. “How the cases are put together and presented in court are virtually identical,” he said.

The revision also reduced the time required to resolve cases, he said. The Noor case marks three cases resolved in six months. Under previous versions of the law, only three cases were resolved from 2001 to 2008.

As a former state prosecutor, federal prosecutor and military defense counsel, Iglesias said, he believes “the Military Commissions Act of 2009 represents the rule of law, it represents due process, and it is a fair system that protects the rights of the accused.”