ACLU To Observe Guantánamo Military Tribunals Firsthand; Cautions Against Command Influence, Lack of Outside Review

August 17, 2004 12:00 am

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ACLU To Observe Guantánamo Military Tribunals Firsthand; Cautions Against Command Influence, Lack of Outside Review


WASHINGTON – Anthony Romero, Executive Director of the American Civil Liberties Union, and other ACLU officials will travel to Cuba in coming weeks to observe the military tribunals convened by the Bush administration.

“Opening the tribunals to some public scrutiny is a step in the right direction, but granting the public limited access to the tribunals won’t by itself solve the problems inherent with this system of second class justice,” Romero said. “The military tribunals are still an unaccountable system of justice. They lack any outside review, leaving them open to command influence and other problems.”

Currently, the administration plans to use the commissions to try non-citizen “enemy combatants” held in the war on terrorism, though they could easily be expanded to include non-citizens or even citizens on American soil. The ACLU remains deeply concerned that the proceedings will be susceptible to command influence, as they lack the safeguards against wrongful conviction included in regular criminal trials and even military courts-martial.

Many of the ACLU’s concerns with the military tribunals have been outlined in a recent report, titled “Conduct Unbecoming: Pitfalls in the President’s Military Commissions,” which analyzes in detail the Defense Department’s guidelines for the military commissions. The commissions were authorized in a 2001 presidential order.

The ACLU noted that the review panels announced by the Department of Defense in response to the recent Supreme Court decisions on indefinite detention deal only with whether detainees are “enemy combatants” and are entirely different from the commissions. The commission rules have not been changed and do not afford “full and fair” trials as promised by the president.

Specifically, the military commissions would have their judges, prosecutors and defense counsel appointed under the sole authority of the armed forces, with the president as Commander in Chief. The Department of Defense is the only government body that can hear any appeal; unlike military courts-martial, there are no appeals to civilian courts. Attorney-client privilege is weakened under the tribunal rules and evidence – even exculpatory evidence – could be withheld from the proceedings under the vaguely defined guise of “national security.”

Also, the military commissions are the sole creation of the White House, and have not been approved by any Congressional action. Accordingly, President Bush has wide discretion to change or modify the rules of the game midstream. He could, for instance, use the commissions against Zacarias Moussaoui, whose civilian prosecutors have suggested a military commission could be used to evade constitutional protections.

“To be clear, our concerns are not with the military per se, but we worry that the commissions are just too open-ended,” said Timothy Edgar, an ACLU Legislative Counsel and author of the report. “All it would take is one mistake, or one unscrupulous person, to give an innocent detainee a life or even a death sentence.”

The report, “Conduct Unbecoming: Pitfalls in the President’s Military Commissions,” is available at:

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