| (New York, June 25, 2003) No
one should be tried before the U.S. military commissions authorized by
President Bush unless their rules are significantly changed, Human
Rights Watch said today. In a new briefing paper,
Human Rights Watch said use of the commissions under current military
orders and instructions will fall far short of international due
Military commission trials of
terrorist suspects under the existing rules will violate the basic
rights of the accused, produce verdicts of questionable legitimacy, and
send a message to the world that justice can be jettisoned in the fight
against terrorism, Human Rights Watch said.
"The commissions are a
discredit to American traditions of justice. The Department of Defense
should go back to the drawing board."
Director, U.S. Program
“The commissions are a discredit
to American traditions of justice,” said Jamie Fellner, director of
Human Rights Watch’s U.S. Program. “The Department of Defense should go
back to the drawing board.”
The Department of Defense has
incorporated certain due process safeguards to the proposed commission
proceedings, including making the trials public, requiring proof beyond
reasonable doubt for conviction, presentation of evidence and
cross-examination of witnesses. But these provisions provide a patina
of due process to proceedings that otherwise remain seriously flawed.
Among the problems with the current rules:
1) Lack of Independent Judicial Oversight.
The rules limit appellate review of the commissions to a specially
created military panel appointed by the Secretary of Defense. President
Bush has final review of commission convictions and sentences. The
executive branch is thus prosecutor, judge and jury, and, potentially,
executioner. There is no independent judicial review of verdicts, no
matter how erroneous, arbitrary, or legally unsound.
2) Violation of Rights of POWs.
The lack of independent appeal is a particularly grave fault if the
commissions are used for people who should have been considered
prisoners of war, such as the Taliban detainees at Guantánamo.
Prisoners of war (POWs) are entitled to at least the same procedures as
the detaining power would give its own troops accused of comparable
crimes. In the United States, that means a court-martial, with appeal
to a civilian court. The failure to follow this procedure for people
who should be POWs would be a war crime.
3) Restrictions on Right to Counsel.
Commission rules require defendants to be represented by military
defense counsel. Defendants may put civilian counsel on their defense
team but a military lawyer must remain on the team as well.
4) Limitations on Effective Defense.
The commission rules place severe limitations on the ability of defense
lawyers to communicate confidentially with their clients, to travel and
to conduct the investigations and research necessary for their case.
For example, attorney-client conversations may be monitored by the
government; attorneys may not talk about any aspect of the case with
prospective witnesses; and all research must be done at the site of the
commissions (presumably Guantánamo Bay). In addition, civilian
counsel, even if they have the requisite security clearance, may not be
given access to all the materials presented to the commissions.
5) Censorship of Defense Counsel.
The rules impose a gag order on defense counsel, preventing them from
speaking with the press or the public unless they receive prior
approval from military officials. Some limitations on defense counsel’s
ability to comment publicly continue even after the trials have ended.
6) Military Trial of Civilians.
The military commissions will be permitted to try persons who were never
combatants and whose connection to armed conflict may be tenuous at
best. For example, a non-U.S. citizen living in the United States who
has financially contributed to al-Qaeda could be prosecuted before the
commission for “aiding and abetting” the enemy. With U.S. courts fully
functioning, there is no justification for subjecting civilians to
military trial and violating their right to a hearing by an independent
and impartial tribunal.
7) Second-Class Justice for Non-Citizens.
Under the President’s Military Order, U.S. citizens may not be tried
before the commissions, regardless of whether they were enemy
combatants who committed war crimes. This exclusion presumably reflects
a political judgment that the U.S. public would not accept the
truncated justice of military proceedings for U.S. citizens.
International human rights law, as well as U.S. constitutional law,
does not permit the United States to discriminate between citizens and
non-citizens with regard to their fair trial rights.