The Execution of the Innocent in Military Tribunals: Problems from the Past and Solutions for the Future

Abstract

For the past fifteen years, the United States has struggled with the question of how to administer military tribunals. During that time, most commentators have assumed that the right to a speedy trial that protects traditional criminal defendants also benefits military tribunal defendants. But in the context of military tribunals, history suggests that delay is good for defendants – especially innocent defendants. This is perhaps best illustrated by two previous military tribunals: the Dakota War tribunals of 1862 and the German Saboteurs tribunal from World War II. Those earlier tribunals led to the conviction and execution of defendants who were likely innocent. These injustices were largely the result of the public fear and hysteria surrounding the military events precipitating the tribunals, which in turn caused structural infirmities in the tribunals like denial of counsel, unreliable evidence, unnecessary secrecy, biased decision makers, and hastiness. If the tribunals had been sufficiently delayed, the hysteria likely would have abided, and the structural infirmities would likely have been either improved or even cured. If military tribunals are going to be used in the future, we should remember the benefits of, and insist on, a new right for defendants to delay the tribunals.

Keywords: military tribunals, military commissions, national security, international law, terrorism, Guantanamo, criminal procedure, German saboteurs, Dakota War, World War II, Al Qaeda