Interested Persons Memorandum Regarding the "Military Commission Order No. 1"
To: Interested Persons
From: Timothy H. Edgar, ACLU Legislative Counsel
Date: April 16, 2002
Re: Military Commission Order No. 1, March 21, 2002
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On November 13, 2001, President Bush issued a "Military Order" that permitted the indefinite detention and potential trial by military commission of non-citizens suspected of involvement in terrorism. We opposed the order because the Constitution does not allow the substitution of martial justice for trials in accordance with the procedures of Article III and the Bill of Rights except in certain very narrow circumstances which are not present here. We also met with Defense Department officials to express our specific concerns about the fairness of trials that apparently were contemplated by the November 13, 2001 order. Administration officials had suggested that a new order setting forth procedures for military trials would restore some of the rights apparently stripped away by the President's earlier plan.
On March 21, 2002, the Department of Defense issued "Military Commission Order No. 1" setting forth procedures for military trials. While some progress was made in meeting the concerns expressed by ACLU and other human rights groups, the military commission order still falls far short in fundamental ways.
Some of the concerns that were addressed in the March 21, 2002 military commission order include provisions that require:
- That innocence is presumed and guilt must be established beyond a reasonable doubt, rather than some lesser standard;
- That the accused will have a right against self-incrimination;
- That military defense counsel is guaranteed at the government's expense, and civilian counsel will be permitted if the accused can afford it;
- That the presiding officer will be a judge advocate with legal expertise;
- That a separate sentencing phase will be available in all trials;
- That unanimous verdicts, and seven-member commissions, will be required for any death sentence;
- That review of verdicts and sentences will be available by appeal to a three-member review panel; and
- That a finding of "not guilty" may not be changed to a finding of "guilty" through an appeal by the government.
Nevertheless, this important step forward is simply overshadowed by the several steps backward contained in the military commission order, described below.
Impartiality and Independence. The procedures outlined by Military Commission Order No. 1 utterly fail to provide for an impartial and independent tribunal. Under the order, the "Appointing Authority," which may be the President, the Secretary of Defense, or a designee, will have ultimate control over the entire military commission proceeding, including the appointing of commissioners, the review panel, selection of the Chief Prosecutor and Chief Defense Counsel, and the ultimate disposition of the case. This procedure simply does not offer any guarantee of impartiality or independence and violates basic principles of American justice and international law.
The Appointing Authority will appoint commissioners "from time to time," meaning that commissions can be hand selected to try specific cases. This procedure violates a basic principle, recognized in international law, that military superiors should not be permitted to handpick members of a military tribunal because of the dangers of illegal command influence. See, e.g., Findlay v. United Kingdom, 24 Eur. H.R. Rep. 221 (Eur. Ct. H.R. 1997) (handpicking military jurors violates basic human rights); Genereux v. The Queen  S.C.R. 259 (same). The procedure also does not appear to allow for any peremptory challenges or even for challenges for cause, as required in courts-martial under the Uniform Code of Military Justice. See 10 U.S.C. § 10 U.S.C. § 841; see also United States v. Glenn, 25 M.J. 278, 279 (C.M.A. 1987) (defense challenges for cause should be liberally granted, to ensure an impartial military jury).
Even more alarming, the procedures outlined could permit direct interference in the conduct of commissions by the "Appointing Authority" itself. The order allows for interlocutory appeals (apparently including by the prosecution) to the Appointing Authority. These problems are compounded by the Appointing Authority's control over the selection of review panels, which may be appointed for specific cases, and the Appointing Authority's apparent power to set aside the review panel's recommendations of a new trial or lesser sentence.1 These provisions render illusory the order's guarantee of an appeal, a requirement under American justice and international law.
Likewise, the Appointing Authority is given substantial control over defense lawyers. The Chief Defense Counsel is selected by the Appointing Authority who will then select military lawyers as defense counsel. Military lawyers are the only guaranteed defense counsel for a defendant. While civilian lawyers are allowed, they must be approved by the government and, as discussed below, they may be excluded from the trial proceedings virtually at the discretion of the commission whenever "national security" is invoked.
Judicial Review. Military Commission Order No. 1 provides for an entirely closed system, subject to the control of the President or Secretary of Defense, with no appeal allowed to any civilian court. The order fails to provide for any direct appeal of a commission's rulings to an independent civilian court, such as the Court of Appeals for the Armed Forces, as is provided in courts-martial under the Uniform Code of Military Justice.
The order also fails to correct the egregious court-stripping provision of the President's November 13, 2001 order. Seemingly, that provision purported to suspend the privilege of the writ of habeas corpus by executive fiat, in violation of Article I, section 9 of the Constitution. In the absence of a direct appeal, the "Great Writ" is the only available means to ensure that a federal judge, vested with the independence and authority provided by Article III of the United States Constitution, will have any role in determining whether the detention, trial and possible execution of persons held by the United States government is in accordance with the rule of law.
Despite the statement of White House counsel Alberto Gonzales that this was not the intent of the President's November 13, 2001 order, at least in respect to any military commissions convened in the United States,2 the original court-stripping language has been left in place, apparently as leverage in any future habeas challenge. This provision, adopted in the absence of Congressional approval, not only violates basic principles of American law,3 it is directly contrary to the International Covenant of Civil and Political Rights (ICCPR), to which the United States is a party. Article 9 of the ICCPR expressly guarantees habeas review or an equivalent legal remedy to any person in confinement.
Jurisdiction and Scope. Despite public assurances that military commissions will be reserved for "foreign aggressors" and "vicious enemies," and the clear implication that such commissions are to be used only against leaders of the Al Qaeda terrorist network in "war crimes" prosecutions, Military Order No. 1 does nothing to cure the broad sweep of President Bush's November 13, 2001 order. The sweeping scope of the order, and its potential domestic application, continues to raise questions of the most serious nature regarding its possible use as a substitute for the ordinary criminal justice system in a wide range of cases said to relate to terrorism, with extraordinary damage to civil liberties and human rights. In so doing, the order violates the basic limitations on the use of military tribunals imposed both by the American constitution and international law.4
Those subject to the order are not limited to persons captured abroad in the course of military operations, but could include persons arrested either in the United States or abroad by ordinary civilian police. Likewise, the order is not limited to members of specific organizations, such as Al Qaeda, who were involved in the September 11, 2001 attacks on the United States and who are at least arguably within the Congress's authorization of military force resolution, citied as authority by the Military Order. Pub. L. No. 107-40.5 Finally, the order is not limited to prosecutions for war crimes under 28 U.S.C. § 2441, but includes any charge of involvement in "acts of international terrorism," which is not defined by the order. Nor is the order limited even to acts that could be characterized as "law of war" violations. Rather, the order explicitly permits charges for "violations of the law of war and all other offenses triable by military commission." The order does not clarify what those "other offenses" might be.
The only safeguard against widespread application of the order to otherwise petty offenses said to be terrorism-related is the goodwill of the President and other Administration officials. In a society committed to human rights under law, that result is plainly unacceptable.
Discrimination on the basis of nationality. The order's most significant jurisdictional limitation - that it may not be applied to American citizens - sets forth a separate and unequal system of justice based entirely on an arbitrary and entirely irrelevant criterion - the nationality of the alleged offender. This criterion has no basis in the American Constitution, which requires that non-citizens, no less than citizens, are entitled to trial in a regular criminal court with all of the protections of the Bill of Rights for criminal offenses -- including terrorism offenses.6 Under Article III of the constitution, federal courts contain important guarantees of independence and impartiality, such as a judge insulated from politics by life tenure and salary protections, able to make constitutional rulings without interference from higher authorities. Conversely, in those narrow situations where military commissions constitutionally may try those alleged to violate the "law of war," the American constitution makes no distinction between citizen and non-citizen.7
We do not mean to suggest that expanding the jurisdictional scope of military commissions to include United States citizens would be an appropriate response to this concern. Rather, the exclusion of American citizens from the scope of the military commissions instead casts doubt on whether such commissions are really needed at all. Indeed, the government's decisions in the case of John Walker Lindh, an American citizen accused of terrorism offenses for his association with Al Qaeda and the Taliban, amply demonstrates that criminal courts remain a viable option for terrorism cases. Instead of amending the President's order to make it applicable to citizens, the government chose to proceed in federal district court. A second American citizen who was interned at Guantanamo Bay apparently will, if tried at all, receive a trial in federal district court. These decisions show that federal district courts can be used to try Al Qaeda and Taliban prisoners, and cast serious doubts on the government's assertions that such courts cannot be used in such cases because of concerns about security or safeguarding classified information.
Secret trials with secret evidence. Again, contrary to public assurances that the Defense Department is committed to open hearings and to ensuring the right of an accused to confront the prosecution's evidence, the order has been carefully drafted to permit the closure of all or part of a hearing essentially at the government's discretion and to ensure that the accused will see only that evidence that the government allows in its discretion to be seen. The order permits the closure of a hearing not only when judged necessary to protect against the unauthorized disclosure of classified material, but also to prevent disclosure of "classifiable" material - that is, material that is unclassified but could be classified at the discretion of the government. However, even if the government cannot meet the standards for classification, the order still allows the hearings to be closed either to protect witnesses or for unspecified "national security" reasons.
The closure of a hearing means not only that the media are excluded, but also that the accused and, potentially, his civilian lawyer are excluded, with the trial proceeding with only military officers present. The order expressly allows for the entire trial to be conducted in secret, without the presence of either the accused or his civilian lawyer, for "national security" reasons even if no classified information would be disclosed in an open proceeding.
Finally, the right to confront evidence, guaranteed in both American jurisprudence and international law, is severely curtailed by provisions that allow the government to refuse to reveal evidence to the accused or his civilian lawyer for "national security" reasons. Under the order, it is not even clear that the military lawyer is entitled to view the classified evidence, but may instead be required to attempt a defense - with no ability to consult with his or her client - on the basis of a heavily redacted summary. These provisions fly in the face of President Bush's campaign promise to end the use of secret evidence against Arab and Muslims even in civil immigration hearings. They would explicitly permit, for the first time in American history, the use of evidence not revealed to the accused or his civilian lawyer to establish guilt in a criminal proceeding. Secret evidence could be used even if the accused faces the death penalty.
Indefinite detention without charge, even for those who are acquitted. Finally, the order does nothing to forbid the indefinite detention without charge of those the government deems dangerous. Indeed, comments of Department officials interpreting the order make clear that this problem has been exacerbated, not corrected, by the order. Officials have said they believe the order not only does not require any detained persons to be charged within a specific time period, but also that it would allow continued detention of those who have been acquitted of all charges by a military commission.8
Detention without charge is a serious deprivation of liberty and is, in general, simply not allowed under the American constitution. In addition, Article 9 of the ICCPR expressly forbids indefinite detention without charge. It is not enough that the government suspects that individuals may be dangerous or may engage in criminal activity if released. When permitted at all, civil detention requires at a minimum a special justification and strict procedural safeguards to ensure individualized determinations of dangerousness under a strict burden of proof.9 The order not only permits indefinite detention of persons who, under the order, are presumed innocent or even found innocent by a military commission, it sets forth no guidelines, procedural safeguards, or rules that would permit a wrongly detained person to secure his liberty.
Under these circumstances, indefinite detention frustrates the entire purpose of providing for otherwise "full and fair" trials. Even if every other deficiency in the rules for military commissions were adequately addressed, this deficiency would render the procedure grossly unfair and a basic violation of both American norms of justice and international standards.
Death Penalty. The death penalty is a punishment that denies the essential humanity of the condemned and is always a human rights violation. ACLU has consistently demanded for reform of the defects of the death penalty system in the United States, and of the military justice system in particular. The deficiencies outlined above make it clear that trials by military commissions will not meet fundamental standards of justice, let alone the additional "super due process" required by the Constitution for decisions to impose the death penalty. While the Department's requirement of unanimous verdicts of a seven-member commission for a sentence of death is an improvement over the President's original order, any trial for which the death penalty is an available punishment must, at an absolute minimum, be conducted in an Article III court with all of the procedural safeguards required by federal law.
Conclusion. While some progress has been made, grave deficiencies remain. The trials authorized by Military Commission Order No. 1 do not meet the President's requirement of providing "full and fair" trials. They do not guarantee fundamental rights protected by the American constitution and international law. The military commission order makes clear that military tribunals cannot provide a fair, impartial and independent trial, and that instead the regular criminal courts should be used to prosecute terrorism offenses.
4 - Ex Parte Milligan sets forth the basic rule that military tribunals cannot be used against those accused of crime, even when characterized as violations of the "law of war," where there is no emergency situation that prevents "the courts [from being] open, and in the proper and unobstructed exercise of their jurisdiction." 71 U.S. at 127. Ex Parte Quirin, 317 U.S. 1 (1942) permitted a military commission to be used also, during a time of declared war, against "unlawful belligerents" who are "acting under the direction of the armed forces of the enemy." Id. at 37. Likewise, article 4 of the ICCPR only permits derogation from normal standards of justice in times of "public emergency which threatens the life of the nation and which is officially proclaimed," a standard not met here.
5 - We do not believe that Congress's use of force resolution authorized military tribunals. However, since the President's Military Order relies on that resolution, we must insist that the resolution's limitations be respected.
6 - During litigation over the Chinese Exclusion Act, the Supreme Court firmly rejected the notion that non-citizens are not protected by the Bill of Rights when accused for crime. Wong Wing v. United States, 163 U.S. 228 (1896).
7 - Ex Parte Quirin, 317 U.S. at 44 ("[T]he offenders were outside the constitutional guaranty of trial by jury not because they were aliens but only because they had violated the law of war by committing offenses constitutionally triable by military tribunal." (emphasis supplied)).