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The recently concluded Guantánamo Bay military commission trial of Salim Ahmed Hamdan was filled with surprises. No doubt prosecutors were frustrated, defense counsel pleased and most likely human rights observers remain ambivalent, about the results. A panel of six military officers convicted Hamdan of one war crime but acquitted him of another more serious charge. The commission sentenced Hamdan to five and one-half years, a stinging setback for prosecutors who had asked for a 30-year sentence. Since the presiding military judge, Navy Capt. Keith Allred, had previously ruled that Hamdan would get credit for time served, he could be eligible for release in five months. During the trial, Allred made numerous rulings in favor of the defendant, which shaped the course of the trial. For example, his ruling on the first day of the trial, excluding evidence of the “coercive” interrogation of the defendant, was characterized by the media as a “surprise move.” But his decision to bar the evidence offered by the government should come as no surprise at all. Judges rule on the admissibility of evidence. It’s part of their job in presiding over trials. Other than their military rank and different uniforms, the military judges presiding over the military commission trials in Guantánamo are no different from civilian judges. They rule on motions, sustain or overrule objections and keep the trials moving. Their objective, like that of their civilian counterparts, is to ensure that all the defendants get fair and honest trials. Some commentators complain about so-called “command influence” adversely affecting the fairness of the trials. But courts-martial and military commissions have tried major cases for decades with scant evidence of the military hierarchy pressuring officers for a certain pre-ordained result. Prior to his ruling excluding the government’s evidence, Allred had demonstrated his strong independence in prior rulings in this case, which was the first war crimes trial conducted by the United States since Nuremberg. He conducted pre-trial proceedings in a very professional judicial manner, “calling ‘em like he saw ‘em,” carefully applying the law to the facts and ruling in a fair and objective manner. Throughout the proceedings, there was no evidence whatsoever of a “thumb on the scales of justice” in this case, or any other of the proceedings. Earlier this year, Allred made another ruling in the Hamdan case which might be considered “surprising” to those who aren’t versed in military judicial proceeding. In a major pre-trial ruling, Allred disqualified an Air Force brigadier general from participating further in the prosecution of the government’s case. The general was “fired” for exerting “improper influence” over the team of prosecutors, and compromising the fairness of the proceedings. Imagine a junior Navy lieutenant disqualifying an admiral from a case for misconduct. Or consider a buck private in the Army reprimanding a general for improper activities. This ruling by a junior officer disqualifying a senior officer is yet another example of the independence of military judges presiding over the trials of detainees in Guantánamo. Just a year ago, this same Naval officer and another military judge who is an Army colonel sent shockwaves up the entire military chain of command by dismissing charges against alleged enemy combatants on a legal technicality. Despite the independence and admirable performance to date of these military judges, the military commissions system concocted by the Pentagon is deeply flawed. They are an imperfect attempt at balancing the detainees’ rights to due process, while at the same time protecting national security interests. The clumsy procedures adopted by the Pentagon accomplish neither objective. The administration would have been better served by adopting the time-tested and eminently fair procedures for courts-martial established by the Uniform Code of Military Justice. If there is any bright spot in the international embarrassment of the warehousing of detainees in Guantánamo Bay, it has been the courageous performance of the military judges presiding over these trials, as well as the military lawyers assigned to defend the detainees. It remains to be seen whether these fine officers serving as judges will be promoted to flag rank one day, despite their rulings against the government. Based on their performance in these two cases, fair-minded observers would have to admit they are richly deserving of favorable consideration for promotion. So the military judges should take a well-deserved bow. In the glare of international media attention, they are taking their judicial duties very seriously, doing a stellar job and doing America proud. All in all, they are making the very best out of a seriously flawed system of justice. Gerald Skoning is lawyer in Chicago. He served as a Navy lawyer and tried numerous court-martial cases during the Vietnam era.

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