Letter to Defense Secretary Donald Rumsfeld on the Use of Military Tribunals

Document Date: January 15, 2002

The Honorable Donald Rumsfeld
Secretary of Defense
The Pentagon
Washington, DC 20301

Dear Secretary Rumsfeld:

We appreciate the opportunity to share our ideas with you regarding the regulations that would govern military commissions under the President’s Military Order of November 13, 2001.

The ACLU believes that military tribunals are unnecessary because the regular criminal courts are the appropriate forum for prosecuting accused terrorists. In reacting to the terrorist attacks of September 11, the United States must respect basic notions of fairness and due process, as a matter of both democratic principle and international law. Any perceived abandonment of America’s commitment to human rights in times of conflict, including the right to fair trials, would betray a source of national pride, and worsen our image among our detractors. Responding to terrorist attacks with transgressions of basic rights under international law could exacerbate the terrorism problem and invite retaliation. We can avoid these problems by honoring our democratic principles and international legal obligations. The best way to do so is to try suspected terrorists in federal courts with full due process protections.

However, we understand that the President has charged the Department to establish procedures that will satisfy the Order’s requirement for “full and fair” trials, as well as the demands of the Constitution and international law. With that understanding, we offer our recommendations. Of course, we cannot adequately comment on a document that we have not seen. Accordingly, we recommend that the Department publish its regulations governing military tribunals in the Federal Register for notice and comment, even if only for a brief period, to allow input from interested organizations, before implementing any regulations.

Press reports at the end of last year suggest that the Department is considering rules that will, among other things, provide for a presumption of innocence, permit conviction only upon proof of guilt beyond a reasonable doubt, guarantee a right to counsel, require unanimity in any decision to impose the death penalty, and allow review by some sort of appellate tribunal.

While we would support these provisions if properly crafted, they do not sufficiently address all the issues that must be addressed if military tribunals are to comport with basic due process protections guaranteed by international law. They leave unanswered very serious problems concerning the dangers of illegal command influence, the need for a meaningful appeal and meaningful judicial review, the broad scope of the original Military Order, serious concerns regarding the use of secret evidence and closed hearings, and the very real prospect of indefinite detention of suspects without charge.

The International Covenant on Civil and Political Rights (ICCPR)1 sets forth a minimum set of customary and treaty-based due process rights, which are considered basic human rights. As a party to the ICCPR, the U.S. is obligated to follow it. Article 14 of the ICCPR provides, “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” The Article further sets forth minimum due process guarantees. Besides the rights already mentioned above, these include the right:

  • To be informed promptly and in detail of the charges against one;
  • To be tried without undue delay;
  • To cross examine witnesses and obtain attendance of witnesses on one’s behalf;
  • Not to incriminate one’s self;
  • To have a conviction and sentence reviewed by a higher tribunal according to law;
  • To take one’s case before a court to decide on the lawfulness of the detention (which is provided under Anglo-American law by habeas corpus review); and
  • To compensation for unlawful arrest or detention (Article 9).

    While Article 4 of the ICCPR allows for “derogation” of the above protections in times of national emergency, that is only permitted under extraordinary circumstances. A national emergency is defined as a situation of such gravity as to “threaten the life of the nation.” This high threshold is not met by the ongoing risk of terrorist violence to the United States. It is noteworthy that the Ad Hoc International Criminal Tribunal for the Former Yugoslavia (“ICTY”) provided all of these rights and more. Certainly the United States can do the same.

    We also urge the Department to consider the following specific recommendations in drafting rules for any possible military trials:

    Death Penalty. The overwhelming majority of democratic countries oppose the death penalty, even for war crimes and crimes against humanity. The ACLU opposes the death penalty in all cases and has represented enlisted men on military death row, including United States v. Matthews in 1983. Although the death penalty is available under federal law, the Supreme Court has said that death is different, holding that the death penalty may only be imposed if the defendant was given “super due process” protections. One of those protections is a two-tiered trial – one to determine guilt and the other to determine punishment. Another is the right to be represented by two attorneys. These protections would not be available in a military tribunal. We urge the Department to prohibit the death penalty as a form of punishment available under the tribunals, or in the alternative, to require that anyone facing a possible death sentence be tried in an Article III court with all the due process protections available under federal law.

    Jurisdictional Scope. We strongly urge the Department to draft rules limiting the jurisdictional scope of military tribunals to those noncitizens captured in the course of military operations abroad, who are accused of war crimes against Americans connected to the September 11, 2001 attacks on civil aircraft and on the World Trade Center and the Pentagon.

    First, the use of military commissions against persons, whether citizens or not, arrested or extradited to the United States and subject to the jurisdiction of the United States courts would pose severe constitutional problems, as recognized by, among others, the American Bar Association’s Task Force on Terrorism and the Law, which supports a limited use of military tribunals. As the Supreme Court reaffirmed just this summer, “the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 121 S. Ct. 2491, 2500 (2001) (emphasis supplied). Military commissions in the past have, with very few exceptions, been reserved for the fields of battle where civil courts are not available. We strongly urge the Department to draft rules that would narrow the jurisdictional scope of the tribunals to those noncitizens captured in the course of military operations abroad.

    Second, we urge that the scope of the military commission’s jurisdiction be limited explicitly to war crimes committed in connection with the September 11, 2001 attacks on the World Trade Center and the Pentagon. The President’s Order relies on the authority given by the Congress for the use of force in Public Law 107-40 (2001). Although we do not feel that authorization is sufficiently explicit to allow the use of military tribunals without further action by the Congress, that resolution does contain a limitation that such force may only be used in response to the September 11, 2001 attacks. The President’s Military Order contains no such limitation. We urge the Department to include such a limitation in the rules for the tribunals.

    Finally, we urge that the rules for the tribunals explicitly limit their jurisdiction to war crimes. It is not clear whether the President’s Military Order contains such a limitation, instead applying to all persons whom the President has “reason to believe” is a member of Al Qaeda, is in any way complicit in “acts of international terrorism” or “knowingly harbored” either of the above. Terrorism has been a difficult term to define, and various definitions in the United States Code sweep broadly, encompassing not only horrific acts of violence against civilians, but also such things as fundraising for the lawful activities of an organization labeled as terrorist, even if the funds are not used for illegal activities. 18 U.S.C. § 2339B.

    Despite this broad language, administration officials have made clear that they intend military commissions to be used only against persons accused of war crimes. At a hearing before the Senate Armed Services Committee on December 12, 2001, Department of Defense General Counsel William Haynes made clear that, although the order stated that it applied broadly to all terrorism offenses, the President “intends to use this tool, if he does do it . . . to try war crimes” — and only war crimes. Likewise, at a hearing before the Senate Judiciary Committee on December 6, 2001, Attorney General John Ashcroft stated his view that, although the wording was not clear, “the correct construction of the order would indicate that only individuals who had committed war crimes would be subject to the jurisdiction of the [military] commission.”

    To avoid any confusion, we urge that the rules for the military tribunals contain an explicit requirement that such tribunals have jurisdiction only over offenders who commit war crimes within the definition of 18 U.S.C. § 2441, which gives the United States district courts jurisdiction over war crimes committed by United States nationals and members of the United States armed forces. Section 2441 lists specific violations of the law of war which are considered sufficiently grave to be classified as war crimes under international law. Such a limitation would ensure that military tribunals are reserved only for the worst offenders, and will not be used as a substitute for the criminal justice system for all terrorism offenses, as was originally feared.

    Secret Evidence. We urge that any procedures the Department proposes to safeguard classified information must guarantee a defendant the ability to confront the prosecution’s evidence and the public’s right to access judicial proceedings, and uphold President Bush’s policy of ending the use of secret evidence. In that regard, we urge the Department to consider using procedures modeled on Rule 505 of the Military Rules of Evidence, which offers the government and the defendant rights which are similar to those afforded criminal defendants in criminal courts under the Classified Information Procedures Act (CIPA).

    The right of a defendant to confront the evidence and witnesses against him is not only basic to our the fundamental system of justice, as reflected in the Sixth Amendment, but also is a fundamental part of any fair system of justice. It is explicitly protected by Article 14 of the International Covenant on Civil and Political Rights (ICCPR), to which the United States is a signatory.

    The recent history of the use of secret evidence in deportation cases under procedures less protective that those required under the Classified Information Procedures Act or similar procedures has shown the critical importance of the confrontation right. As Supreme Court Justice Felix Frankfurter wrote in Joint Anti-Fascist Refugee Committee v. McGrath, “Secrecy is not congenial to truth seeking. . . . No better instrument has been devised for arriving at the truth than to give a person in jeopardy of serious loss notice of the case against him and the opportunity to meet it.”

    Experience has proven Justice Frankfurter right. Judges have determined that the secret evidence used in recent immigration cases is inherently unreliable. In one case, In re Ahmed, the immigration judge said that most of the secret evidence being used to deny asylum and bond amounted to double or even triple hearsay, and may have originated with the foreign government accused of persecuting the person seeking asylum. Every other federal court to examine the issue has agreed. The serious shortcomings in the government’s use of secret evidence in the past decade have also been the subject of two House hearings. The accused and their lawyers cannot defend against information they cannot see.

    Because of these concerns, President Bush has made a firm commitment against the use of secret evidence. During the second televised presidential debate, Bush said, “Arab Americans are racially profiled on what’s called secret evidence,” saying the government should “do something about that.”2 Since coming into office, Attorney General Ashcroft has confirmed this policy, in testimony before Congress, affirming the administration commitment not to use such evidence.3 Since the attacks on September 11, 2001, even as hundreds have been detained in the course of a Justice Department investigation, administration officials have insisted they have abided by President Bush’s “campaign promise not to use secret evidence in immigration cases.”4

    Recently, the Senate added its voice to those who recognize the importance of allowing non-citizens to receive a summary of the classified information used in deportation proceedings, which is also required by Rule 505 in military proceedings. On November 8, 2001, the Senate rejected on a voice vote an amendment, which was opposed by the Department of Justice, that would have expanded the use of secret evidence by deleting the requirement that a non-citizen brought before the Alien Terrorist Removal Court be given an unclassified summary of the classified information used against him.

    Perhaps no other aspect of the proposal to try accused terrorists in military tribunals has raised more concern than the prospect that tribunals could operate in secret, and would not give defendants an ability to confront their accusers. It was this aspect of the trial of Lori Berenson, an American citizen accused of terrorism and tried before a military tribunal in Peru, that led the United States to object to her trial and demand a new trial “in open civilian court, in accordance with international judicial norms.”

    It would not be worthy of the United States, to deprive defendants facing the most serious charges imaginable, of the basic right to defend themselves, particularly now that so much progress has been made towards ending the abuses of secret evidence in the immigration context. We urge the Department of Defense to uphold President Bush’s policy against secret evidence by using procedures to safeguard classified information that are no less protective of the rights of the accused as the Classified Information Procedures Act and Rule 505 of the Military Rules of Evidence.

    Impartial Commissioners. Next, we strongly urge the Department of Defense to draft rules that will ensure that military commissioners are chosen in a fair and impartial manner, free of illegal command influence, by permitting peremptory challenges and challenges for cause. We also recommend that require only military commissioners who are trained in the law and legal procedure be permitted to preside over the trial of alleged offenders.

    The Military Order, as drafted, could be interpreted to allow the Secretary of Defense to personally appoint the members of the military commission. This would violate 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)

    We urge that the Department draft rules that allow for fair selection of military commissioners, by providing a broad venire of prospective commissioners who are not handpicked by superiors. We also urge that, as in courts-martial, the prosecution and the defense should be permitted at least one peremptory challenge and an unlimited number of challenges for cause. See 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).

    We also strongly urge the Department to require that military commissioners, trained in military law and the law of nations, be required to preside over the commission. Under the President’s Order, the military commission makes rulings concerning the admissibility of evidence and is “the trier of both fact and law.” This could be interpreted as turning the clock back on an important reform to the military justice system: the enactment of the Military Justice Act of 1968, Pub. L. No. 90-632, 82 Stat. 1355, which ensured that military courts would have independent, trained judges, not lay military officers, to make legal rulings. Questions concerning the admission of evidence, the conduct of the trial and the sometimes arcane “law of war” should not be made by lay military officers. The presence of an military commissioners who are trained as judges would help inspire some public confidence that the law is being fairly applied.

    Independent Review. We strongly urge the Department to establish a mechanism for independent appellate review by a civilian body, either through the existing Court of Appeals for the Armed Forces or another appellate panel, and to provide for judicial review through habeas corpus or another mechanism.

    Press reports indicate that the Department of Defense is considering establishing an independent appellate body to review decisions of any military tribunals. This would be a welcome step, as the original Military Order envisioned review by the President or Secretary of Defense – the very officials who determine there is “reason to believe” a defendant is guilty of terrorism. It is critical to satisfying basic standards of international justice under Article 14 of the ICCPR, which requires independent appellate review as a fundamental aspect of a fair trial.

    To be credible, the members of an appellate panel must be respected jurists and should be subject to Senate confirmation (as are the judges of the Court of Appeals for the Armed Forces). Most importantly, the decisions of an appellate body to reverse a conviction or reduce a sentence must be insulated from any review by the President or Secretary of Defense, although the President would of course retain his traditional, constitutional power to grant pardons and commute sentences. Insulating such decisions from control by the President or Secretary of Defense is consistent with the views of Deputy Secretary of Defense Paul Wolfowitz, who told the Senate Armed Services Committee on December 12, 2001, that permitting the President or Secretary of Defense to reverse an acquittal “was not the intention of the order.”

    Finally, the rules should provide some role for the independent, Article III judiciary in reviewing questions concerning the jurisdiction of the military commissions, as well as other questions traditionally cognizable on habeas corpus. The Constitution protects against the suspension of habeas corpus, the traditional mechanism for challenging illegal or unconstitutional confinement, except in cases of invasion or rebellion, and such a suspension requires Congressional action. Likewise, the basic habeas right is protected by the Article 14 of the ICCPR.

    The President’s Military Order contains a broad, court-stripping clause that leaves a considerable amount of confusion concerning the continued availability of habeas review. Administration officials quickly made clear that, despite this language, they did not intend to suspend habeas corpus. In testimony before the Senate Armed Service Committee on December 12, 2001, Department of Defense General Counsel William Haynes made clear that the order preserved habeas review for prisoners held within the United States, and that whether there would be some form of judicial review for prisoners held outside the United States had not been determined by the Secretary of Defense.

    Judicial review is one of the most important checks on overreaching by the other branches of government, and we strongly urge the Department, in its rules, to permit some form of judicial review in Article III courts of trials in military tribunals for all prisoners, whether by habeas corpus or other procedure, to ensure public confidence in the fairness and constitutionality of the procedure.

    Indefinite Detention. Finally, we strongly urge the Department to put in place clear rules concerning the length of time that individuals may be detained before they must be either charged or released, and that require a speedy trial for those who are charged.

    This issue is of pressing importance, as press reports indicate that hundreds of detainees are currently in Defense Department custody in Afghanistan, and some have already been transferred to United States military facilities in Guantanamo Bay, Cuba. Hundreds more have been detained in the United States as part of a Justice Department investigation, and remain potentially subject to the President’s Military Order, if it is not narrowed as we recommend above.

    During the debate on the recently-enacted USA Patriot Act, Congress considered and rejected a proposal to permit indefinite detention of noncitizens without charge, requiring that those who are certified as suspected terrorists must be charged within seven days of an immigration violation or criminal offense, or released. While battlefield conditions may require a longer period than seven days for those captured abroad in the course of military operations, rules that could permit indefinite and potentially life-long internment of people without charge would be a severe abridgement of our basic values.


    We are convinced that liberty and security need not be at odds. Fair procedures protect both the rights of the accused and the interests of the public both by ensuring that only guilty people are convicted so that terrorists do not remain at large to plan further attacks, and by adding to international credibility, thus encouraging our friends and allies to cooperate with the United States in combating terrorism around the globe.

    We appreciate the enormous task facing the Department in reconciling the need to provide justice for the victims of the heinous attacks of September 11 with the demands of the Constitution and international law. Whether one labels those attacks crimes of terrorism, war crimes, or crimes against humanity, our most basic values – and everything we are fighting to protect – demand that we as a nation have the courage to uphold fundamental fair trial rights.


    Laura W. Murphy
    Director, ACLU Washington National Office

    Timothy H. Edgar
    ACLU Legislative Counsel

    William H. Haynes II, DOD General Counsel
    Witt Cobb, DOD Deputy General Counsel
    Vic Bernson, DOD Associate Deputy General Counsel


    1 – International Covenant on Civil and Political Rights, Dec. 16, 1966, reprinted in 999 U.N.T.S. 171, and 6 I.L.M. 368 (entered into force for the United States Sept. 8, 1992).

    2 – William Glaberson, U.S. Seeks New Use of Secret Evidence, N.Y. Times, December 9, 2001.

    3 – On June 6, 2001, Attorney General Ashcroft discussed President Bush’s policy, telling the House Judiciary Committee that “we have not to date during this administration used such evidence.”

    4 – Glaberson, supra (quoting Dan Nelson of the Department of Justice).

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