Abstract  "Military Tribunals:  Procedural Justice and the Problem of Evidence"

Military tribunals provide neither military justice nor civilian justice, but constitute a parallel legal system with different evidentiary standards.  According to President Bush's original order of November 13, 2001, which charged the Defense Department to arrange for military commissions to try suspected terrorists, both hearsay evidence and secret evidence were considered admissible forms of evidence.  Under tribunal rules later proposed in the wake of widespread criticism, convictions will require proof beyond a reasonable doubt, a right to examine evidence, unanimity among commissioners in death penalty convictions, and a higher bar for admissable evidence. Although secret evidence may still be used, a lawyer for the accused will be able to see and to challenge evidence.  This paper explores both legal and philosophical questions of evidence raised by the prospective military tribunals, with particular focus on secret evidence and on judicial questions that arise when specific evidence of war crimes does not exist.  Such questions of judicial process are at the heart of concern over "victors' justice," making military tribunals within the American context of the war against terrorism problematic in ways in which military or civilian trials, or trials before an international forum, are not.  Contemporary evidence scholarship, which challenges the fact-finding role of evidence in legal procedings, is borne out, I will argue, by the diminished role of evidence proposed for military tribunals.