New ACLU Report Highlights Dangers of Command Influence, Lack of Civilian Review in President's Military Commissions

March 9, 2004 12:00 am

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WASHINGTON – In a new report, released today to coincide with the American visit of relatives of the detainees being held in Guantanamo Bay, Cuba, the American Civil Liberties Union criticized President Bush’s plan to try terrorism suspects in special military commissions, which would feature few of the safeguards against wrongful conviction used in normal trials, or even military courts-martial.

“The President and Secretary of Defense are creating a separate and unequal justice system for the men being held at Guantánamo,” said Anthony Romero, Executive Director of the ACLU. “They have set up a system that allows the government to investigate, jail, interrogate, try and punish the Guantánamo prisoners without sufficient legal protections against wrongful conviction and execution.”

The report, titled “Conduct Unbecoming: Pitfalls in the President’s Military Commissions,” analyzes in detail the Defense Department’s guidelines for the military commissions, which were authorized in a 2001 presidential order.

The guidelines as written establish a separate system of trial for non-citizens captured as “combatants” in the war on terrorism, most of whom are being held at the U.S. naval base in Cuba. The rules, however, would allow their use for any non-citizen suspected of terrorism – which is defined to include even a single incident or attempt – including visitors and legal immigrants arrested within the United States. They also could, under the Administration’s legal theory, be expanded to include American citizens with the stroke of a Presidential pen.

Release of the report comes as the ACLU is hosting several relatives of the detainees now held at Guantanamo Bay. The relatives have been brought from Europe to Washington and New York to meet with members of Congress and the media.

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, using these commissions, for instance, against Zacarias Moussaoui, whose civilian prosecutors have suggested a military commission could be used to evade constitutional protections, or the citizen enemy combatants Yasser Esam Hamdi and Jose Padilla.

“To be clear, our concerns are not with the military,” said Timothy Edgar, an ACLU legislative counsel and author of the report. “But these commissions are just too open-ended. It would take but 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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