Letter to the Organization of American States on Military Detentions and Tribunals
Inter-American Commission on Human Rights
Organization of American States
Washington, D.C. 20006
U.S.A.
Gentlemen and Ladies:
We are advised that the Commission has decided to undertake a special study of terrorism and human rights, for the purpose of assisting OAS member states in adopting counter-terrorism laws and other measures that accord with international human rights requirements. While we understand that the report is expected to address a range of issues in a general manner, we believe that a reasoned consideration of these subjects must be informed by an understanding of the particular measures taken over the past seven months by the government of the United States, measures which some other states have already begun to treat as precedent, model and justification for their own repressive actions. With this in mind, we provide below an analysis of the current US plans regarding military commission trials for suspected ""terrorists,"" We believe that the recently issued rules for military commissions signals a substantial risk that the United States will shortly be carrying out one or more military commission trials in clear violation of fundamental rights, creating a situation of such seriousness and urgency as to warrant a request by the Commission that the United States either rescind the military commission rules in their entirety or adopt such other precautionary measures as may be necessary to assure lawful treatment for all individuals in US detention.
We write also with reference to the Commission's Request for Precautionary Measures Re: Detainees in Guantanamo Bay, Cuba, dated March 13, 2002 (the ""Request""), addressed to the government of the United States of America, in which the Commission requests the United States to take urgent measures necessary to have the legal status of the detainees in Guantanamo Bay determined by a competent tribunal. As noted in the Request, while international humanitarian law generally does not apply in peacetime, ""[i]t is well-recognized that international human rights law applies at all times, in peacetime and in situations of armed conflict."" Request at 3. The Commission further notes that the Government of the United States considers itself to be at war with an international network of terrorists, and, on this basis, the Commission provisionally concludes that ""according to international norms applicable in peacetime and wartime, such as those reflected in Article 5 of the Third Geneva Convention and Article XVIII of the American Declaration of the Rights and Duties of Man, a competent court or tribunal, as opposed to a political authority, must be charged with ensuring respect for the legal status and rights of persons falling under the authority and control of a state.""
The Commission's focus of concern in the Request continues to be unaddressed: despite what the Commission correctly characterizes as ""well-known?doubts?as to the legal status of the detainees,"" Request at 4, the United States continues to reject any need for hearings by ""competent tribunals"" as required by article 5 of the Third Geneva Convention. Assuming for argument's sake the correctness of the US position regarding the existence of a state of international armed conflict, it follows that were the United States to acknowledge that some or all of the Guantanamo detainees are ""prisoners of war,"" such individuals would be entitled to trial for alleged war crimes by the ""same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power"" (i.e., the United States). Third Geneva Convention, article 102. Similarly, under article 106, they would be entitled to the same ""right of appeal"" as would US soldiers. In light of the rigorous due process protections provided for courts- martial under the US Uniform Code of Military Justice - particularly including independent appeals to civilian judges in the Court of Appeals for the Armed Forces - concerns regarding unfairness and discrimination would be largely resolved with regard to acknowledged prisoners of war if the Geneva requirements were complied with.
More generally, the Commission stresses in its Request that ""no person under the authority and control of a state, regardless or his or her circumstances, is devoid of legal protection for his or her fundamental and non-derogable human rights."" Request at 3. By contrast, the United States continues to maintain that, as so-called ""unlawful combatants"" affiliated with non-state parties in an unprecedented type of conflict, the Guantanamo detainees do not in fact have any clear legal status under hitherto existing law.[1] The Commission's view is strongly supported by the International Committee of the Red Cross, whose Commentary on the Fourth Geneva Convention states that ""there is no intermediate status; nobody in enemy hands can be outside the law?.[I]f, for some reason, prisoner of war status?were denied [to detainees], they would become protected persons [as civilians] under the [Fourth] Convention."" J. Pictet, Ed., Commentary, IV Geneva Convention (1958), Commentary to article 4.
The US has also argued that the Guantanamo detainees are not entitled to US constitutional protections because even if the United States exercises ""complete jurisdiction and control over and within"" the territory of the Guantanamo Naval Base, ""ultimate sovereignty"" is retained by Cuba. See Order Dismissing Petition for Writ of Habeas Corpus and First Amended Petition for Writ of Habeas Corpus, issued February __, 2002, by the United States District Court, Central District of California, in the proceeding brought by the Coalition of Clergy, et al., against George Walker Bush, et al., Case No. CV 02-579 AHM (JTLx), at 21 (quoting the Lease to the United States of Lands in Cuba for Coaling and Naval Stations, Feb. 16-23, 1903, U.S.-Cuba, T.S. No. 418). To the extent an analogous argument might be raised with regard to the application of international norms in regard to the detainees, the Commission has properly anticipated the inadequacy of such a view in confirming that ""[t]he determination of a state's responsibility for violations of the international human rights of a particular individual turns not on that individuals' nationality or presence within a particular geographic area, but rather on whether, under the specific circumstances, that person fell within the state's authority and control."" Request at 2, n.7.
The March 21, 2002 Military Commission Order No. 1
Subsequent to the Request, the United States Department of Defense has now issued its Military Commission Order No. 1, dated March 21, 2002 (""Order No. 1""), in which the United States sets out in more detail its intentions regarding the legal treatment of the detainees in Guantanamo.
The procedures set forth in Order No. 1 evidence some effort by the US Administration to address a number of concerns that have been widely raised regarding the procedural fairness and due process contemplated for trials of the Guatanamo detainees and others who may be subject to the order. Thus military commissions to be conducted under Order No. 1 will, it appears:
Affirm the presumption of innocence;
Require proof of guilt beyond a reasonable doubt;
Recognized the right against self-incrimination;
Provide military defense counsel at government expense and permit civilian defense counsel; and
Require unanimous verdicts and seven-member commissions for any death sentence.
Nonetheless, a number of provisions in Order No. 1 continue to violate US domestic and international legal norms, rendering all the more pressing the concerns previously articulated by the Commission. As the Commission has noted, even in circumstances where trials by military courts might be lawful, such trials must still ""respect the minimum guarantees established under international law, which include non-discrimination between citizens and others who find themselves under the jurisdiction of a State, an impartial judge, the right to be assisted by freely-chosen counsel, and access by defendants to evidence brought against them together with the opportunity to contest it."" Resolution re: Terrorism and Human Rights, December 12, 2001. Review of the trial regulations and procedures contemplated by Order No. 1 reveals a failure fully to satisfy any of these bedrock requirements. We outline below some of the more troubling elements, in the light of applicable international law.
Lack of independence and impartiality
The procedures outlined by Order No. 1 utterly fail to provide for an independent and impartial tribunal. Under the order, the President, acting directly or through the ""Appointing Authority"" (the Secretary of Defense or a designee), will have ultimate control over the entire military commission proceeding, including the appointing of commissioners and the review panel, selection of the Chief Prosecutor and Chief Defense Counsel, and the ultimate disposition of the case. Order No. 1, sections 2, 4(B)-(D), and 6(H). This procedure offers no guarantee of impartiality or independence, in violation of the ""right to be given an impartial and public hearing, and to be tried by courts previously established in accordance with pre-existing laws,"" as provided in article XXVI of the American Declaration of the Rights and Duties of Man (""American Declaration""); as well as the requirement of article 14(1) of the International Covenant on Civil and Political Rights (""ICCPR"") for a ""competent, independent and impartial tribunal established by law.""
In this connection, the UN Human Rights Committee has ""pointed out that measures adopted by a Government to combat terrorism should not affect the exercise of the fundamental rights set forth in the Covenant?.Regarding article 14, the Committee said that no derogation whatsoever from any of its provisions was possible.""[2] See The Administration of Justice and the Human Rights of Detainees: Question of Human Rights and States of Emergency, Tenth Annual Report, presented by Leandro Despouy, Special Rapporteur, UN Doc. E/CN.4/Sub.2/1997/19, June 23, 1997, paragraph 111; available online at: http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/58af9dc14a3e2dba8025665c004a87f7?Opendocument (last visited April 25, 2002.)
Under section 2 of Order No. 1, 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 [1992] S.C.R. 259 (same).
Even more alarming, the procedures outlined could permit direct interference in the conduct of commissions by the Appointing Authority itself. Section 4(A)(5)(d) of Order No. 1 allows for interlocutory appeals (apparently including by the prosecution) to the Appointing Authority. These problems are compounded by the Defense Secretary's control over the selection of review panels, which may be appointed for specific cases, and the apparent power of the President or the Defense Secretary to set aside the review panel's recommendations of a new trial or lesser sentence. Order No. 1, section 6(H)(4)-(6).[3] As discussed further below, 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 Appointing Authority selects the Chief Defense Counsel, who will then select military lawyers as defense counsel. Order No. 1, sections 2 and 4(C)(2)-(3). 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. Order No. 1, section 4(C)(3)(b). Particularly in the context of a system otherwise completely under the same military chain of command, these considerations raise substantial doubt as to the order's compliance with the requirements of ICCPR article 14(2), mandating ""counsel of [the defendant's] own choosing.""
Judicial review
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. Order No. 1, section 6(H)(2). The order fails to provide for any direct appeal of a commission's rulings to an independent civilian court, such as a federal court under article III of the US constitution, or the Court of Appeals for the Armed Forces, as is provided in courts-martial under the US Uniform Code of Military Justice. This omission directly violates article 106 of the Third Geneva Convention, which mandates a right of appeal ""in the same manner as the members of the armed forces of the Detaining Power,"" and is applicable not only to any prisoner of war, but also to any other individual accused of ""grave breaches."" (See Fourth Geneva Convention, article 146.) It is also in clear violation of article 14(5) of the ICCPR, which assures the ""right to?.revie[w] by a higher tribunal according to law.""
Order No. 1 also fails to correct the egregious court-stripping provision, section 7(B), of the President's Military Order of November 13, 2001, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism (the ""November 13 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 US constitution. In the absence of a direct appeal, the ""Great Writ"" is the only available means to ensure that an independent federal judge will have any role in determining whether the detention, trial and possible execution of persons held by the United States government accords with the rule of law. The suppression of the right of habeas corpus contravenes the obligation established by article XXV of the American Declaration to assure ""[e]very individual who has been deprived of his liberty?the right to have the legality of his detention ascertained without delay by a court."" So fundamental is the right to judicial review of the lawfulness of a detention that the Inter-American Court of Human Rights has held that even under a state of emergency, states may not suspend habeas corpus, noting that it is precisely in such exceptional circumstances that the remedy takes on its greatest importance. Inter-American Court of Human Rights, Habeas Corpus in Emergency Situations, Advisory Opinion No. 8, June 30, 1987, paragraph 12.
For similar reasons, concerning article 9(4) of the ICCPR, the UN Human Rights Committee has stressed that ""the principles of legality and the rule of law require that?.[i]n order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of the detention must not be diminished by a State party's decision to derogate from the Covenant."" States of Emergency (Article 4), General Comment No. 29, UN Doc. CCPR/C/21Rev.1/Add.22, August 31, 2001, paragraph 16.
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. See November Order, section 2(A); Order No. 1, section 3(A). This criterion has no basis in the US 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.[4] Under article III of the US constitution, federal courts have 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 have been found constitutionally authorized to try those alleged to violate the ""law of war,"" the constitution makes no distinction between citizen and non-citizen.[5]
International law is entirely consistent with this traditional US jurisprudence. Article II of the American Declaration proclaims ""[a]ll persons?equal before the law?without distinction as to race, sex, language, creed or any other factor""; and article XVII affirms the right of ""[e]very person?to be recognized everywhere as a person having rights and obligations, and to enjoy the basic civil rights."" Similarly, article 2(1) of the ICCPR obliges every state party ""to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.""
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 casts doubt on whether such commissions are really needed at all. Indeed, the United States government's decision in the case of John Walker Lindh, a US 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 November Order to make it applicable to citizens, the government chose to proceed in federal district court. A second American citizen, Yasser Hamdi, who was interned at Guantanamo Bay, apparently will, if tried at all, also receive a trial in federal district court.[6] In yet a third case, the United States has also determined to try in a regular civilian court a French citizen, Zacarias Moussaoui, accused of being the so-called ""twentieth hi-jacker."" These decisions show that federal district courts can be used to try Al Qaeda and Taliban prisoners, and contradict the US government's assertions that civilian courts cannot be used in such cases because of concerns about security or safeguarding classified information.
Secret trials with secret evidence
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, Order No. 1 appears to have 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. Moreover, 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. Order No. 1, section 6(B)(3).
A decision to close a hearing not only means that the media are excluded, but it may also require excluding the accused and his civilian lawyer, with only military officers remaining present. The order expressly allows for the entire trial to be conducted in secret, for ""national security"" reasons, without the presence of either the accused or his civilian lawyer, even if no classified information would be disclosed in an open proceeding.
Both article XXVI of the American Declaration and article 14(1) of the ICCPR establish the right to a ""public hearing"" for criminal charges. While the ICCPR does provide that the ""Press and the public may be excluded from all or part of a trial for reasons of?national security in a democratic society,"" there appears to be no authority in international law for excluding the accused or his counsel on such grounds. In particular, ICCPR article 14(3)(4) expressly characterizes as a ""minimum guarante[e]"" the defendant's right to be ""tried in his presence, and to defend himself in person or through legal assistance of his own choosing."" (See also article 105 of the Third Geneva Convention and article 73 of the Fourth Geneva Convention, both of which permit a trial to be ""held in camera,"" as an exceptional measure, in the interest of state security, but make no mention of excluding the defendant or his lawyer.)
Finally, the right to confront evidence, guaranteed in both US 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. Order No. 1, Section 6(D)(5). This provision 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. Such secret evidence could be used even if the accused faces the death penalty. While the order would exclude from consideration by the tribunal so-called ""Protected Information"" not presented to the assigned military lawyer, it appears that potentially exculpating evidence could be withheld from even the military lawyer, under section 6(D)(5)(b). These provisions would obviously contravene the defendant's right to be informed promptly of the nature and cause of the charges against him (ICCPR article 14(3)(1)), to have adequate time and facilities for preparation of his defense (article 14(3)(2)), and to examine or have examined the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him (article 14(3)(5)).
Indefinite detention without charge
Finally, sections 2(B) and 3 of the November Order expressly contemplate the possibility of detention without charge of individuals subject to the order, and Order No. 1 does nothing to forbid such indefinite detention of those the government deems dangerous. Indeed, comments of Defense Department officials interpreting the order make clear that this problem has been exacerbated, not corrected. 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.[7]
Detention without charge is a clear violation of article XXV of the American Declaration, prohibiting deprivation of liberty except according to procedures established by pre-existing law, and mandating ""without delay"" judicial review of the detention, and the ""right to be tried without undue delay or, otherwise, to be released.""
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. In interpreting article 9, the UN Human Rights Committee has stressed that ""if so-called preventive detention is used, for reasons of public security, it must be controlled by these same provisions [of article 9], i.e., it must not be arbitrary, and must be based on grounds and procedures established by law (para. 1), information of the reasons must be given (para. 2), and court control of the detention must be available (para. 4) as well as compensation in the case of a breach (para. 5)."" Right to Liberty and Security of Persons (Article 9), General Comment No. 8, U.N. Doc. HRI/GEN/Rev., June 30, 1982, paragraph 4.
US law is in accord, requiring for preventive civil detention, in the narrow circumstances when it is permitted at all, at a minimum special justification and strict procedural safeguards to ensure individualized determinations of dangerousness under a strict burden of proof.[8] Order No. 1, by contrast, 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, a failing particularly egregious in the absence of access to any judicial forum for relief.
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 US and international standards of justice.
In response to these concerns, the Defense Department has argued that under article 118 of the Third Geneva Convention, combatants (including so-called ""unlawful combatants"") may be detained until the ""cessation of active hostilities."" Accepting for the sake of argument that the detainees are combatants in an international armed conflict, this argument might have some persuasive power; however, the US also declines to define with any specificity precisely what ""active hostilities"" are at issue, expressly refusing to identify the relevant conflict as the armed conflict occurring in and around the Afghan theatre.[9] By asserting the right to detain prisoners with or without trial until the ""war"" against terrorism has been won, the US effectively announces a state of permanent war, since it is difficult to conceive of ""global terrorism"" ever being completely eradicated, so long as plastic knives or boxcutters remain widely and cheaply available.
Conclusion
While Order No. 1 does represent some progress over the Administration's original plans, grave deficiencies remain. The proceedings authorized by the order do not meet the President's asserted requirement of providing ""full and fair"" trials. They do not guarantee fundamental rights protected by the US constitution and international law. Careful examination of the order makes clear that military commissions as contemplated by the US Administration cannot provide fair, impartial and independent trials, and that, instead, regular criminal courts or,