Fire and brimstone
The contentious use of military commissions to try suspects netted in the US-led "war on terrorism" is a throwback to post-World War II victor's justice. Nyier Abdou looks at the tangle of legal issues raised by the proposed trials
Identify this country, whose human rights record has been fiercely attacked: individuals continue to be held indefinitely without being granted access to family or a lawyer. Defendants are not presumed innocent and denied the right of habeas corpus, thus flouting the principles of due process. Trials involving issues of national security are held in secret and attorney-client meetings can be monitored. What constitutes a "state secret", and hence a justification for closed trials, is broadly defined and determined by the government.
The country is China, and the condemnation is a summary of points raised in the US State Department's Country Report on Human Rights Practices in that country. But this description is also true, to the letter, of the proposed military commissions established under the 13 November 2001 Military Order issued by US President George W Bush on the detention, treatment and trial of non-citizens detained in connection to the US-led "war on terrorism".
Since the post-11 September flurry of anti-terrorism legislation raised the spectre of military commissions, human rights organisations have denounced the proposed tribunals as contravening international law and subverting the US's ostensible commitment to due process. Last week, Bush announced that six prisoners in US custody were being held under the military order, meaning that they could face the controversial commissions.
Although the US refuses to identify the detainees, it is widely assumed that they are among the prisoners being held at the US naval base at Guantànamo Bay, Cuba. Britain and Australia have confirmed, however, that British citizens Moazzam Begg and Feroz Abbasi and Australian David Hicks, all detained in Guantànamo, are among the six. Some 680 prisoners from over 40 countries are being held at Guantànamo's "Camp Delta". "Camp Iguana" houses three juvenile prisoners.
The Guantànamo prisoners have been a sore point of contention for the US since the first detainees, apprehended during the war in Afghanistan, were brought to the base on 11 January 2002. The international outcry raised over the US's decision not to afford the captives prisoner-of-war (PoW) status has been a persistent thorn in the side of the US administration, but not one that has punctured the thick armour of confidence worn by the Pentagon.
None of the prisoners have been charged with a crime or seen a lawyer or family members. None have even seen the inside of a courtroom, leaving them in what human rights groups dub a legal "black hole". Under the Geneva Conventions, which adjudicate the so-called laws of war, captives netted during an armed conflict must be presumed to be PoWs. If there is any question as to their status, a "competent tribunal", called for in Article 5 of the Third Geneva Convention, must be held to determine their status. Because the US position clearly identified the prisoners as "unlawful combatants", no such trials were ever convened for the prisoners at Guantànamo. Until now, cases brought before US courts trying to challenge this logic have been unsuccessful, as have cases in which groups sought to serve as an advocate for the inmates.
The location of Camp Delta on a base outside the US clouds the prisoners' legal status further. The US maintains that because the land for the base is leased from Cuba, it technically falls under the sovereignty of the Cuban government and thus the prisoners have never set foot on US soil. The precedent often used to maintain this contention is the 1950 decision Johnson vs. Eisentrager, which held that US civil courts do not have jurisdiction over military authorities "dealing with enemy aliens overseas".
The designation of the six prisoners under the military order has now focussed scrutiny on the military commissions themselves. The last time such trials were held was following the Second World War, so critics argue that the lengthy "Final Rule" issued by the Department of Defence last week, which regulates how the commissions will be held, is setting the precedent for "victor's justice" in the era of a one- superpower world.
"Our position is that these are not independent courts; they are executive bodies. There is no true independence from the executive," says Rob Freer, a researcher at the London-based human rights watchdog Amnesty International. Freer explains that under the rules of the military commissions, the executive is the ultimate authority, and can remove the commission members at will. "They are not in any way courts established by law."
Human rights advocates warn that convening military commissions will undermine the influence wielded by the US in its condemnations of human rights abuses in other countries. In its country report on Egypt, the US censures the use of military tribunals where judges are military officers appointed by the Ministry of Defence. The report notes that the verdict cannot be appealed and is only subject to review by a panel of other military judges and confirmed by the president.
The proposed US trials are almost identical. The commission is determined by the "Appointing Authority" -- under the order this is Secretary of Defence Donald Rumsfeld, but Rumsfeld recently shifted this responsibility to his deputy, Paul Wolfowitz. The order makes clear that the decision is not subject to any appeal: "The individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual's behalf" in any US, foreign or international court. Instead, the decision is reviewed by a panel of three military officers assigned by the Appointing Authority. From there the decision is referred to the US Secretary of Defence and then ultimately, the president.
Amnesty International maintains that even the legal basis of the commissions contravenes international law. "The military order is discriminatory," says Freer. "It only applies to non-US citizens. Even if a US citizen was accused of the same offence, or even something worse, he would not face a military commission. International law prohibits discrimination based on nationality."
The admittance of evidence is also significantly less strict than in a civil case, with evidence being given by telephone or under a pseudonym considered acceptable. Hearsay is also admissible, and Amnesty has underscored the fact that the commission guidelines "do not expressly exclude statements extracted under coercive methods".
Freer also notes that the commissions seriously limit defendants' choice of council. All defendants are appointed a military lawyer. If they can afford it, they can employ a civilian lawyer, but that lawyer must pass security clearance and even then, may be excluded from proceedings that deal with "classified" information. "Even if the defendant does not want a military lawyer, he gets one anyway," notes Freer.
Elisa Massimino, director of the Washington office at the Lawyers Committee for Human Rights (LCHR) explains that there is a crucial difference between a US "courts martial", which would be tried under the Uniform Code of Military Justice, and the new commissions. "The Geneva Conventions require that trials of enemy soldiers be conducted pursuant to procedures identical to those used to try soldiers of the detaining power," she explains. "That is, the rights afforded defendants in such proceedings must be equivalent to those afforded US soldiers who are tried." In the view of the LCHR, the rules of the military commissions cannot allow for a fair trial and, unlike a US courts martial, are not likely to meet international standards of due process.
Most significantly, the trials can pass a sentence of death. The European Commission, which categorically opposes capital punishment, has issued statements warning that using the death penalty could erode already faltering support for the strong-arm tactics of the US in its war against terrorism. Britain has expressed serious concerns that its nationals could face the death penalty, but ultimately its hands are tied. Asked what the UK could do in the event that its nationals were given the death penalty, Amnesty's Freer remarked dryly, "They can protest very loudly."
On Britain's intervention in the US treatment of the Guantànamo prisoners, Freer noted that the government has simply been too soft on the US. "They should have been working a lot harder right from the beginning, before these people were named, to ensure that they had proper justice, proper trials, proper courts. We don't feel that has been the case." Now all that can be done, he adds, is to "protest as hard as possible".
The furore raised over the commissions can be misleading, since many now feel that commissions for the six prisoners are already a fait accompli. In fact, only the first step towards the commissions has been taken -- invoking the military order. After this, a military prosecutor must level charges against the prisoners and these charges must then be approved by the Appointing Authority -- in this case, Wolfowitz. Wolfowitz would then refer the charges for trial and appoint a commission. Unlike a civil case, a two-thirds majority is enough to pass a sentence, but in a capital case, it must be unanimous.
