NCJ Number
235554
Journal
Federal Probation Volume: 75 Issue: 1 Dated: June 2011 Pages: 27-32
Date Published
June 2011
Length
6 pages
Annotation
This article presents an overview of how the United States uses military commissions to prosecute suspected war criminals, using the proceeding involving Omar Khadr (the defendant) to explain how this process differs from criminal prosecution in U.S. District Court.
Abstract
The issues discussed include legislation governing military commissions, jurisdiction, referral of charges, the convening authority, composition of a military commission, due process rights, rules of evidence, the administration of oaths, disclosure of classified information, and pretrial agreements. Other aspects of military commission proceedings pertain to the role of commission members during the trial and deliberations, sentencing hearings, sentencing instructions, procedure for determining the sentence, the impact of a pretrial agreement on the sentence, and appeals and post-sentencing issues. The conclusion of this overview is that the prosecution of Guantanamo detainees by the military follows a strict set of guidelines under the Federal Military Commissions Act of 2009, which was enacted after the U.S. Supreme Court ruled that military commissions could not be conducted under the Uniform Code of Military Justice (UCMI). Although these prosecutions vary in many respects from those brought in Federal criminal court, they are similar to how the military prosecutes its own members under the UCMI. Specifics of the Khadr case were obtained by reviewing available court records, supplemented by the author's personal observations during 4 days in the military commission courtroom where Khadr's sentencing hearing was held. Another primary source of information regarding the military commissions was an interview conducted with Navy Captain David C. Iglesias on October 28, 2010, at Guantanamo Bay. He has served since 2008 with the Office of Military Commissions as a team leader, prosecutor, and spokesman. Additional resources used in preparing this article were Title 18 of the U.S. Code, including the Federal Rules of Criminal Procedure.