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THE ARMY LAWYER Headquarters, Department of the Army Department of the Army Pamphlet 27-50-366 November 2003 Articles Military Commissions: Trying American Justice Kevin J. Barry, Captain (Ret.), U.S. Coast Guard Why Military Commissions Are the Proper Forum and Why Terrorists Will Have “Full and Fair” Trials: A Rebuttal to Military Commissions: Trying American Justice Colonel Frederic L. Borch, III Editorial Comment: A Response to Why Military Commissions Are the Proper Forum and Why Terrorists Will Have “Full and Fair” Trials Kevin J. Barry, Captain (Ret.), U.S. Coast Guard Afghanistan, Quirin, and Uchiyama: Does the Sauce Suit the Gander Evan J. Wallach Note from the Field Legal Cultures Clash in Iraq Lieutenant Colonel Craig T. Trebilcock The Art of Trial Advocacy Preparing the Mind, Body, and Voice Lieutenant Colonel David H. Robertson, The Judge Advocate General’s Legal Center & School, U.S. Army CLE News Current Materials of Interest Editor’s Note An article in our April/May 2003 Criminal Law Symposium issue, Moving Toward the Apex: New Developments in Military Jurisdiction, discussed the recent ACCA and CAAF opinions in United States v. Sergeant Keith Brevard. These opinions deferred to findings the trial court made by a preponderance of the evidence to resolve a motion to dismiss, specifically that the accused obtained and presented forged documents to procure a fraudulent discharge. Since the publication of these opinions, the court-matial reached the ultimate issue of the guilt of the accused on remand. The court-martial acquitted the accused of fraudulent separation and dismissed the other charges for lack of jurisdiction. These unpublished results do not appear to affect the value of the Brevard opinions as legal precedent. Editor, Captain Heather J. Fagan Technical Editor, Charles J. Strong The Army Lawyer (ISSN 0364-1287, USPS 490-330) is published monthly tion (17th ed. 2000) and Military Citation (8th ed. 2003). Manuscripts will be by The Judge Advocate General’s Legal Center and School, Charlottesville, Vir- returned upon specific request. No compensation can be paid for articles. ginia, for the official use of Army lawyers in the performance of their legal responsibilities. Individual paid subscriptions to The Army Lawyer are avail- The Army Lawyer articles are indexed in the Index to Legal Periodicals, the able for $45.00 each ($63.00 foreign) per year, periodical postage paid at Char- Current Law Index, the Legal Resources Index, and the Index to U.S. Govern- lottesville, Virginia, and additional mailing offices (see subscription form on the ment Periodicals. The Army Lawyer is also available in the Judge Advocate inside back cover). POSTMASTER: Send any address changes to The Judge General’s Corps electronic reference library and can be accessed on the World Advocate General’s Legal Center and School, 600 Massie Road, ATTN: ALCS- Wide Web by registered users at http://www.jagcnet.army.mil/ArmyLawyer. ADA-P, Charlottesville, Virginia 22903-1781. The opinions expressed by the authors in the articles do not necessarily reflect the view of The Judge Advocate Address changes for official channels distribution: Provide changes to the General or the Department of the Army. Masculine or feminine pronouns Editor, The Army Lawyer, The Judge Advocate General’s Legal Center and appearing in this pamphlet refer to both genders unless the context indicates School, 600 Massie Road, ATTN: ALCS-ADA-P, Charlottesville, Virginia another use. 22903-1781, telephone 1-800-552-3978, ext. 396 or electronic mail to [email protected]. The Army Lawyer welcomes articles from all military and civilian authors on topics of interest to military lawyers. Articles should be submitted via elec- Issues may be cited as ARMY LAW., [date], at [page number]. tronic mail to [email protected] or on 3 1/2” diskettes to: Editor, The Army Lawyer, The Judge Advocate General’s Legal Center and School, U.S. Army, 600 Massie Road, ATTN: ALCS-ADA-P, Charlottesville, Virginia 22903-1781. Articles should follow The Bluebook, A Uniform System of Cita- Articles Military Commissions: Trying American Justice Kevin J. Barry, Captain (Ret.), U.S. Coast Guard....................................................................................................................... 1 Why Military Commissions Are the Proper Forum and Why Terrorists Will Have “Full and Fair” Trials: A Rebuttal to Military Commissions Trying American Justice Colonel Frederic L. Borch, III .................................................................................................................................................... 10 Editorial Comment: A Response to Why Military Commissions Are the Proper Forum and Why Terrorists Will Have “Full and Fair” Trials Kevin J. Barry, Captain (Ret.), U.S. Coast Guard...................................................................................................................... 17 Afghanistan, Quirin, and Uchiyama: Does the Sauce Suit the Gander Evan J. Wallach........................................................................................................................................................................... 18 Note from the Field Legal Cultures Clash in Iraq Lieutenant Colonel Craig T. Trebilcock...................................................................................................................................... 48 The Art of Trial Advocacy Preparing the Mind, Body, and Voice Lieutenant Colonel David H. Robertson, The Judge Advocate General’s Legal Center & School, U.S. Army ......................... 51 CLE News......................................................................................................................................................................................... 55 Current Materials of Interest ......................................................................................................................................................... 65 Individual Paid Subscriptions to The Army Lawyer ........................................................................................................................ Inside Back Coverg NOVEMBER 2003 THE ARMY LAWYER • DA PAM 27-50-366 • In Memoriam • On behalf of The Judge Advocate General’s Corps, we respectfully dedicate this issue to the memories of Chief Warrant Officer Five Sharon T. Swartworth, Warrant Officer of the Corps and Sergeant Major Cornell Winston Gilmore, Ser- geant Major of the Corps. The soldier above all others prays for peace, for it is the soldier who must suffer and bear the deepest wounds and scars of war. - General Douglas MacArthur Military Commissions: Trying American Justice1 Kevin J. Barry Captain, U.S. Coast Guard (Retired) The Department of Defense (DOD) General level of due process that is characteristic of American criminal Counsel’s “Military Commission Instruc- justice, and the United States could lose the moral high ground tions,” issued on 30 April 2003, renew the it has long enjoyed as a world leader working to ensure funda- concerns that surrounded the President’s 13 mental fairness in criminal adjudications. November 2001 military order and again cast serious doubt on the ability of military commissions to be viewed as fundamentally President’s Military Order—13 November 2001 fair and to meet American standards of jus- tice. When the President issued the Military Order (PMO) on 13 November 2001, it immediately precipitated a storm of criti- cism. The order—applicable only to non-U.S. citizens that the On 30 April 2003, the DOD General Counsel issued eight President determined either to be members of al Qaida, or to “Military Commission Instructions,” the third event in the pro- have played a role in international terrorism, or to have har- cess of establishing the structure and regulations for the trials of bored any such person—raised doubts about the application of individuals the President has designated as subject to trial by the presumption of innocence, whether the usual criminal stan- military commission.2 Because they depart materially from dard of “beyond a reasonable doubt” would apply, and whether court-martial practice and procedure, these instructions renew acquittals could be reversed. It also clearly prohibited judicial the doubts created by the initial military order issued by the review of convictions.5 It appeared to allow trials to be con- President on 13 November 20013 about whether military com- ducted in secret—with the possibility that those accused could missions established under that order would—or could—meet be denied access to the evidence used against them at trial—and basic standards of American justice.4 Unless substantially to set aside normal rules of evidence in favor of a generic “pro- modified to more closely reflect current court-martial princi- bative value to a reasonable person” standard.6 It also provided ples and rules, these military commissions will not achieve the for conviction and sentencing—even the death sentence—by 1. The current article is an expanded and updated version of an article that previously appeared under a similar title in The Federal Lawyer and is used with permis- sion. The changes and updates are set forth primarily in the expanded footnotes in this article. See Kevin J. Barry, Military Commissions: American Justice on Trial, 50:6 FED. LAW. 24 (2003). 2. Procedures for Trials by Military Commissions of Certain Non-U.S. Citizens in the War Against Terrorism, 68 Fed. Reg. 39,374-99 (July
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