Matthew Hoffman: There is more than one way to hold a fair trial

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Beware a rush to judgement. This week the press, from the tabloid end through to the broadsheets, has taken up the cases of the Moazzam Begg and Feroz Abbasi, two British prisoners at Guantanamo Bay, who will be among the first six prisoners to face trial before the new US military courts.

Amnesty International has denounced the planned trials as a "travesty of justice" and 163 MPs have signed a petition calling on Tony Blair to demand their extradition to be tried in the UK. But what exactly is the impending injustice that all of these groups are so concerned to ward off?

Their objections, although dubious, have been made with such frequency and urgency that they deserve to be addressed before they become accepted wisdom. There is a tendency for the US government seemingly to take the position that its self-perception of its own innate wisdom and benignity are so evident to others that only the ill-motivated could see any fault in any actions it takes in its war against al-Qa'ida. But as an American living abroad, I see daily evidence of how every action of the sole global superpower is scrutinised with a sceptical eye.

Charges have not yet been levelled, but the sort of crimes for which these prisoners may be prosecuted are said to include attending al-Qa'ida training camps, raising money for the organisation and recruiting terrorists. They are among the "small fry": later trials will deal with larger matters, such as the killing of innocents. In total, the commissions have been entrusted to try 18 war crimes and eight other offences.

The first, and most frequently voiced, objection to these proceedings is that the military commissions will operate under different rules from the civilian courts that try US citizens. Famously, John Walker Lindh, the "American Taliban", was indicted last year, for conspiracy to kill Americans, in a federal court in Virginia. Why, it is asked, should there be two standards of justice, one for Americans and one for everyone else, including Britons?

This is meant as an unanswerable rhetorical question, but there is a reasonable reply, or so it seems to me. The use of separate tribunals to deal with the difficulties thrown up by terrorism is hardly unheard of in the United Kingdom; after all the juryless "Diplock" courts were created for Northern Ireland (and something similar in the Republic) to deal with the intimidation of jurors and witnesses by paramilitary groups.

Separate and different applications of the law are not unusual in times of war - Abraham Lincoln, the President who freed the slaves - suspended habeas corpus for the four years of the Civil War. The Geneva Conventions themselves recognise this: for example, in discussing the sort of standards that must be met by courts that try prisoners, they stipulate: "The representatives of the protecting Power shall have the right to attend the hearing of the case. The only exception to this rule is where the hearing has to be kept secret in the interests of the safety of the State."

As can be inferred from the above excerpt, the convention cannot be applied exactly as it was set up for wars between states, rather than the unusual war the US has found itself fighting since 11 September 2001.

The problems that the military commissions have been set up to meet include intimidation, of course, but of more importance is secrecy. These courts will be open to the press, civilian attorneys (despite misreporting saying that defendants will have to rely on counsel supplied by the American military) and the public; but they will go into secret session - for the presentation of intelligence material, testimony by unidentifiable witnesses, and the security of any other information that could be of value to al-Qa'ida.

Also of great importance and a source of much outrage among those who are critical of these new military courts are the less strict rules of evidence that they will apply. Under the rules that govern US civilian courts, for example, it would not be permissible to use evidence gathered by unauthorised wire-tapping or interrogations in which the prisoner was denied access to a lawyer. These provisions exist in domestic law as much to control the powers of the police as to assure a fair trial to the defendant. But in these terrorist trials, what is important is assessing guilt or innocence, not guaranteeing that the ordinary citizen lives in a society in which his constitutional rights are honoured.

The guiding rule is that "evidence shall be admitted if... [it] would have probative value to a reasonable person". It is worth adding that the Geneva rules also permit the consideration of any relevant evidence.

At this point, one can return to the question of the exclusion of a few American citizens from these special courts. This is done simply because US law does not allow any alternative to the prosecuting authorities. Trials of these defendants, consequently, will be less likely to render a guilty verdict; but the failure to convict the guilty (if guilty they be) will be limited to a handful of cases, at most.

New wine needs new bottles, and new threats need new laws. As long as the bottles don't contaminate the wine, and the laws don't convict the innocent, novelty is no good objection.

m.hoffman@independent.co.uk

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