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Letter to Secretary Rumsfeld on Military Commissions

by Alexander Cockburn And Jeffrey St. Clair

Dear Secretary Rumsfeld,

We are writing to urge you to ensure that the rules and procedures governing military commissions authorized by the President’s order of November 13 fully honor the fair trial guarantees mandated by international human rights law and found in the Uniform Code of Military Justice. This is a legal obligation grounded in customary international law and the International Covenant on Civil and Political Rights (ICCPR), to which the United States is a party. It is also important for ensuring the legitimacy of any judgments rendered by the commissions. Absent unquestionable fairness and respect for due process, the commissions could be seen as instruments of vengeance, rather than of justice. The American tradition of “justice for all” could be undermined, and the ability of the United States to promote fair trials and to criticize the inappropriate use of military courts worldwide would be crippled.

International law permits trials by military tribunals during armed conflict and other emergency situations. But it limits who may be subjected to such trials and requires that the trials meet fundamental due process requirements. Article 14 of the ICCPR obligates states to ensure that any person tried for a crime be given a “fair and public hearing by a competent, independent and impartial tribunal established by law.” Article 14 also specifies some of the guarantees that must be incorporated into any criminal proceeding, such as the right to counsel. While international law permits the derogation of certain rights in a state of emergency, any such derogation is permitted only to “the extent strictly required by the exigencies of the situation.”

The President’s order charges the Department of Defense with developing rules that would provide “full and fair” military trials for suspected terrorists. Those rules must set appropriate restrictions on the scope of the commissions’ jurisdiction so that they do not usurp the function of federal courts. They must also ensure due process, which we believe could be achieved if they adopt the standards of military justice contained in the Uniform Code of Military Justice and the Rules for Courts-Martial.

Within this framework, we make the following recommendations regarding the rules for military commissions that the Department of Defense is developing:

Military Jurisdiction

The Department should specify that the personal jurisdiction of the military commissions would be limited to persons engaged in armed conflict against the United States who are being tried for violations of the laws of war.

As drafted, the president’s order permits military jurisdiction over a far greater range of persons than what is permitted under international human rights and humanitarian law. It authorizes trial by military commission of citizens who are or were members of al Qaeda; who have engaged in acts of international terrorism; or who have knowingly “harbored” such persons. The scope of this jurisdiction not only far exceeds that permitted historically for military tribunals in the United States, but it is inconsistent with international due process norms. The Human Rights Committee, the body authorized to interpret and monitor compliance with the ICCPR, has stated that the trial of civilians by military courts should be very exceptional and occur only under conditions that genuinely afford full due process.

Military jurisdiction over enemy combatants is not a violation of fair trial guarantees, and, indeed, is expressly mandated by the Geneva Conventions for prisoners of war tried for violations of the laws of war. But when military courts replace regular courts to exercise jurisdiction over civilians being tried for criminal offenses, the defendant’s right to a hearing by a competent, independent and impartial tribunal is violated. In the current circumstances, when U.S. courts are fully functioning and the life of the nation is not threatened (the high standard set for derogation from the ICCPR), there is no justification for violating that right and subjecting civilians – whatever their citizenship – to military jurisdiction. The decision to indict alleged terrorist Zacarias Moussaoui in a federal district court rather than having him subjected to military jurisdiction is a welcome acknowledgement of the proper limitations on the use of military commissions.

Triable Offenses

The President’s order authorizes military trials for violations of the laws of war and “other applicable crimes.” This open ended reference to other crimes permits persons to be tried for virtually any offense, well beyond violations of the laws of war for which military tribunals have historically been used. The Department should clarify that the commissions have jurisdiction to try persons accused of violations of only the laws of war.

Habeas Petitions

Any person detained by the military pursuant to the President’s order should have the right to seek a determination concerning the legality of his detention. There has been considerable uncertainty as to whether the president’s order sought to preclude habeas petitions. Precluding such a right would be inconsistent with U.S. constitutional law and traditions as well as contrary to international human rights law. The ICCPR specifically provides that anyone who is detained has the right to have the lawfulness of that detention determined by a court (Art. 9). Under this provision, persons prosecuted under the order -whether apprehended overseas or in the United States — are entitled to review of their detention.

Public Proceedings

Trials by military commissions should be public. As the Rules for Courts-Martial state, opening proceedings “to public scrutiny reduces the chance of arbitrary or capricious decisions and enhances public confidence” (Rule 806). The same rationale calls for presumptively open proceedings before the military commissions. They should be closed to the public only for the limited time required for the introduction of classified information or to protect the security of specific witnesses. The commissions should follow the provisions of the Classified Information Procedures Act, which applies to both civil courts and courts-martial, to ensure protection of classified information without sacrificing public scrutiny of the commission’s proceedings. The choice of location for the military commissions should take into consideration the feasibility of public access as well as security and military requirements. Military exigencies may make public access difficult as, for example, if the proceedings are held on a ship at sea. As the Discussion to Rule 806 cautions, however, ” such exigencies should not be manipulated to prevent attendance at a court-martial.”

No Indefinite Detention

While the president’s order authorizes military detention as well as trial, it does not expressly require that charges be filed and trials be held within a specific period of time. Rules are needed to prevent the possibility of indefinite detention without trial in violation of the fundamental right to liberty (Art. 9, ICCPR). The Department of Defense should develop rules requiring that charges be filed against a detained individual within a reasonable period of time following detention and that trial by commission not be delayed unnecessarily. Rules precluding the possibility of indefinite detention are already incorporated into the UCMJ (Articles 30, 33) and the RCM (Rule 707).

Adherence to Rules for General Courts-Martial

In developing the Uniform Code of Military Justice and the Rules for Courts-Martial, the United States has already shown the world that due process and fair trial guarantees are compatible with military justice, including military proceedings undertaken during times of war. We strongly urge the Department of Defense to develop rules for the military commissions that adhere as closely as possible to the rules governing general courts-martial under the UCMJ and RCM. If there are specific provisions that cannot be utilized for reasons of security, the Department should identify those specific provisions, identify the security concerns, and develop rules that are as close as possible to the standard ones.

In keeping with U.S. military justice standards, U.S. constitutional law and international human rights law, the following basic due process provisions must be incorporated at a minimum into the commissions’ rules:

The accused is informed of all the charges against him.

The accused is not forced to confess or testify against himself, nor may statements from the accused be obtained through coercion, torture or the use of cruel, inhuman or degrading treatment. Any statement obtained through such means should not be used as evidence at trial.

The accused has the right to counsel of his choice, at public cost if he cannot afford counsel; he is able to communicate freely and confidentially with legal counsel; and he has adequate time and facilities to prepare a defense.

The accused is given access to all exculpatory evidence.

The accused has the right to be present at his trial.

The accused has the assistance, as needed, of translations
or interpreters.

The accused is be able to cross-examine all witnesses against him, review and challenge any other evidence introduced by the prosecution, and introduce witnesses and other evidence on his behalf.

The accused is presumed innocent until proven guilty.

Guilt, based upon proof of individual responsibility, is established beyond a reasonable doubt.

Conviction of guilt is not based on acts or omissions that were not offenses under the law at the time they were committed.

The penalty for any offense is not greater than it was at the time that the offense was committed.

Appellate Review

The importance of appellate review of military trial decisions is recognized by the UCJM, which provides for two levels of appellate review by military courts (Arts. 66, 67). Although the president’s order denies the possibility of appeal of the military commissions’ proceedings to federal or state courts, it does not preclude appellate review by higher military courts. In accordance with the right under international human rights law to appeal convictions to a higher tribunal (Art. 14, ICCPR), the Department of Defense should at a minimum permit appeals of military commission verdicts to the U.S. Court of Appeals for the Armed Forces.

The Death Penalty

The President’s order authorizes military commissions to impose the death penalty upon a vote of two-thirds of the commission members present. Whatever the exigencies of the current armed conflict, they do not warrant diminished protections with regard to the imposition of this ultimate and irrevocable punishment. Human Rights Watch opposes the use of the death penalty in all circumstances. If the U.S. government is determined to use the death penalty in these cases, the Department of Defense should ensure at minimum that the commissions’ rules contain the following protections that are mandated by international human rights law and contained in the UCMJ: 1) No person may be sentenced to death except for offenses for which the death penalty has been established by laws in force at time of the offense (Art. 6, ICCPR; Art. 52, UCMJ); and 2) a sentence of death can only be imposed by unanimous vote (Art. 52, UCMJ).

We urge the Department of Defense to give serious consideration to these requirements of U.S. military justice and international human rights law and to incorporate them into the rules it is drafting to govern military commissions. The U.S. government’s response to the horrific crimes of September 11 must re-assert the very values of human rights that the terrorists sought to deny. We call on the Department of Defense to show the world that the U.S. government does not abandon its commitment to justice and human rights in times of trial and conflict, but affirms them as an enduring source of national strength.

We would welcome the opportunity to meet with you or your staff to discuss our concerns and recommendations.

Sincerely,

Kenneth Roth
Executive Director
Human Rights Watch

Jeffrey St. Clair is editor of CounterPunch. His new book is Killing Trayvons: an Anthology of American Violence (with JoAnn Wypijewski and Kevin Alexander Gray). He can be reached at: sitka@comcast.net. Alexander Cockburn’s Guillotined! and A Colossal Wreck are available from CounterPunch.

CounterPunch Magazine

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