|
December 17, 2001
C.G. Estabrook
Who
Opposes the War?
Edward
Said
Mahfouz
and the Cruelty
of Memory
December 16, 2001
Amira Howeidy
Dangerous By
Definition?
Bahour
and Dahan
Zinni's
Doomed Mission
December 15, 2001
John Isaacs
Bush's 12
Lumps of Coal
for Christmas
Dana Cook
The
Execution of bin Laden
Yusuf Agha
Tale of the
Tape:
Osama Gump?
December 14, 2001
Don Atapattu
A Conversation with
Norman
Finkelstein
December 13, 2001
Trojanow and Hoskote:
Nonsense
Mantras of Our Times
Dr. A.
Tajudeen
Afghanistan
and Zaire
Michael Williams
Prohibit
Prohibition
December 12, 2001
Jack McCarthy
Hitchens,
Walker
and Osama's Tape
Laura W. Murphy
Ashcroft's
Jihad
Shahid
Alam
Race
and Visibility
December 11, 2001
Joshua Orton
University
of Wisconsin
Won't Aid FBI Interviews
Philip
Farruggio
Cleansing
the Nation's Soul
Robert Fisk
Why I Was
Beaten
December 10, 2001
Robert
Dunham
Race
and the Death Penalty:
Partners in Injustice
Andy Kershaw
Chamber of
Horrors
Near the Garden of Eden
John Touchie
Isaac's
on Chomsky
December 9, 2001
Jo Dillon
Journalist:
The CIA Wanted
Me Killed
John Chuckman
High-Tech
Puritanism
December 8, 2001
Laurence Tribe
Military Tribunals
Undermine the Constitution
Patrick
Cockburn
The
End of a Strange War
A Photographic Journal of Life
in an Afghan Refugee Camp
By Judith Mann
Resources:
100s of Links
About 9/11
CounterPunch:
Complete
Coverage of 9/11 and Its Aftermath
Five
Days That
Shook The World:
Seattle and Beyond
By Alexander
Cockburn
and Jeffrey St. Clair
Photos by Allan Sekula
(Click Here to Order from CounterPunch
Online at 20% Off Amazon.com's price!)
INSIDE
EXCLUSIVE
TO
COUNTERPUNCH
SUBSCRIBERS
Published Oct. 15, 2001
8-Page Special Issue
War Diary
CIA's Assassination Plan a History of
Torture in US Prisons
bin Laden and Bush
Business Connections
Aisha Ikramuddin on the Hidden Hype
of US Food Bombs
Peter Linebaugh on
Pakistan
Christopher Hitchens' Love for Mrs. Thatcher
Jiang Zemin Tells Bush:
Nuke 'Em
Search
CounterPunch
Read Whiteout and Find Out
How the CIA's Backing of the Mujahideen Created the World's Most
Robust Heroin Market and Helped to Finance the Rise of the Taliban
and Osama bin Laden
Whiteout:
CIA, Drugs & the
Press
by Alexander
Cockburn
and Jeffrey St. Clair
The Memphis Blues Again:
Six Decades of Memphis Music Photographs
Photos by Ernest Withers
Text by Daniel Wolff
The New Intifada:
Resisting Israel's Apartheid
Edited by Roane Carey
A Pocket Guide to
Environmental Bad Guys
by James Ridgeway
and Jeffrey St. Clair
The
Phoenix Program
by Douglas Valentine
Al Gore:
A User's Manual
by Cockburn
and St. Clair
Buy
This Explosive
New Book at an
Amazing Discount!
Reviews of Gore:
a User's Manual
|
December 20,
2001
HRW
Urges Due Process Protections
Letter to Secretary Rumsfeld
on Military Commissions
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 <non-U.S>
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
|