Last night, the Lubbock County Republican Party held its Executive Committee meeting with special guest speaker, Judge Bill Sowder. Judge Sowder is a lieutenant colonel in the Army Reserves. He was called called for active duty to serve as a senior legal advisor for the military commissions in Guantanamo Bay.
He started out with a disclaimer that President Obama is his boss and that he would not criticize the orders from the Commander in Chief regarding closing Gitmo and trying detainees in New York. He then shared his experiences in working within the military tribunal system.
He was adamant that military tribunals offer due process and afford the defendants the same rights as in civilian trials. He did admit, however, that there are two distinct differences between military tribunals and civilian courts. First, the use of evidence presented through the use of “enhanced interrogation techniques” was permissible if the judge reviewed the context of the information and believed it to be reliable. Second was the use of “hearsay” as evidence against the defendant was permissible; again, after review from the judge to determine reliability and context.
Sowder was quick to say that the judges would not accept evidence obtained through torture. He didn’t say what the judges defined as torture and how it differed from “enhanced interrogation techniques”.
In all, I believe his experience of military tribunals depicted a fair trial system; the same system that soldiers are awarded.
With that said, there were a few questions I wish I could have asked him. The first would be if he ever witnessed a trial where the defendant was found not guilty. If so, what happened in those situations? There have been dozens of accounts of where innocent men have been detained for years, only to be released. What happens in those situations? Does the US offer any type of reconciliation?
Judge Sowder said he liked the military tribunal system –without criticizing the decision to try them in New York– because the defendants were at war with the US. He believes that since they are “soldiers” at war with us, they should be tried for war crimes through the military tribunal system just like any other prisoner of war.
This brings up an interesting question. What constitutes a “prisoner of war”? Does the prisoner’s personal declaration of war on the US define him as a prisoner of war? He said that if they were picked up off the battlefield then it is easier to label them as such. I’d disagree with him there, but only because we haven’t officially declared war on either Afghanistan or Iraq. According to Article 2, Section 8 of the US Constitution, only Congress can declare war; which they did not. Because of this oversight, it creates a legal quagmire. It would have been easy to label them as prisoners of war if we declared war, but since we didn’t, they are in the gray murky territory of “soldiers” and “criminals”.
So while Sowder’s speech did inspire confidence that the military tribunals weren’t a “guilty until proven innocent” process, I wish he would have expanded more on the two key areas of detention of innocent men and whether “enemy combatants” are clearly prisoners of war.