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Briefing Paper on U.S. Military Commissions

Revised and Updated August 2004

The U.S. government will soon convene the military commissions authorized by President George W. Bush in November 2001 to try suspected international terrorists.  The finishing touches being applied to a courtroom at Guantanamo Bay, Cuba mirror the completion of the military commission instructions detailing the applicable law and procedures.  To date the president has designated fifteen Guantanamo detainees as eligible for trial by military commission.  Of those fifteen, four have been formally charged and referred for prosecution.   Proceedings against them are slated to begin during the week of August 23, 2004. 

Despite the Bush administration’s oft-repeated assurances that the “global war on terror” will affirm and protect basic human rights, the rules for the proposed commissions fall far short of international standards for a fair trial. The U.S. government has replaced the U.S. federal court and court-martial structures and procedures with a wholly new and untried system that assures Department of Defense control over the proceedings, the verdict, appellate review, and ultimately what the public can know about the trials.  Such trials will undermine the basic rights of defendants to a fair trial.  They will yield verdicts – possibly including death sentences – of questionable legitimacy, and will deliver a message worldwide that the fight against terrorism need not respect the rule of law.

Human Rights Watch has stated before, and we reiterate here, that absent significant change in the structure and rules of the military commissions, the United States would be in violation of its obligations under international law to try anyone before them. The United States should instead take all the necessary steps to ensure that those tried before military commissions receive trials that are a credit to American justice, not a stain on its history.

Under the president’s directive, the U.S. Department of Defense has issued a series of orders and instructions governing most aspects of the commissions, from their basic organization to the crimes to be prosecuted to the rules governing defense counsel and appellate review.¹  These rules incorporate certain due process safeguards into the commissions, including the presumption of innocence, proceedings ostensibly open to the public, and the presentation of evidence and cross examination of witnesses.  Important as they are, these provisions cannot overcome the cumulative impact of other provisions that militate against fairness.  They provide a patina of due process to proceedings that are otherwise deeply flawed.

Under the Defense Department rules, the military commissions will:

Ø Deprive defendants of independent judicial oversight by a civilian court.

Ø Improperly subject criminal suspects to military trials.

Ø Try prisoners of war (POWs) in a manner that violates the 1949 Geneva Conventions.

Ø Deprive defense counsel of the means to prepare an effective defense.

Ø Place review of important interlocutory questions with the charging authority.

Ø Fail to guarantee that evidence obtained via torture or ill-treatment shall not be used.

Ø Allow wide latitude to close proceedings and impose a “gag order” on defense counsel.

Ø Deprive military defense counsel of normal protections afforded military lawyers from improper “command influence.”

Ø Restrict the defendant’s right to choose legal counsel.

Ø Provide lower due process standards for non-citizens than for U.S. citizens.

In the end, it is unclear how many cases will proceed to full trials before the commissions. The lopsided rules plus the threat of capital punishment may compel many of those accused to accept plea agreements, even if harsh. This will permit prosecutors to declare victory, but the broader public will be deprived an important opportunity to assess guilt or innocence, and fill an important historical record.

Lack of Independent Judicial Oversight

The military commissions do not allow for review by a court independent of the executive branch of government.  Review of the commissions’ proceedings is limited to a specially created review panel appointed by the Secretary of Defense.²  No appeal is permitted to U.S. federal courts or the U.S. Court of Appeals for the Armed Forces, a civilian court independent of the executive branch that handles appeals from the courts martial.³  The President has final review of commission convictions and sentences.

The executive branch is thus prosecutor, judge, jury and – since the commissions can impose the death penalty – potential executioner.  Persons tried and convicted by the commissions will have no opportunity for independent judicial review of verdicts, no matter how erroneous, arbitrary, or legally unsound.  Review of commission decisions thus remain wholly within the control of the military.  By skirting review by a civilian court, the military commissions depart from the well-established principle of civilian review in the U.S. military justice system.