Statement In Opposition To The Use of the Military Commissions Authorized by President Bush and the Department of Defense

On November 13, 2001, President Bush issued a Military Order authorizing the use of military commissions. On March 21, 2002, the Defense Department issued regulations implementing the Order.

The Department’s regulations address some of the concerns we have previously expressed; specifically, those provisions that affirm the presumption of innocence; require proof of guilt beyond a reasonable doubt; recognize the right against self-incrimination; provide military defense counsel at government expense and permit civilian defense counsel; and require unanimous verdicts and seven member commissions for any death sentence.

Nevertheless, the Department regulations specify provisions that still fail to meet fundamental standards of procedural fairness, international legal requirements and constitutional due process requirements.  The regulations also fail to honor President Bush’s pledge that trials by military commissions will be fair. If these flaws are not corrected, they will undermine the legitimacy of whatever verdicts such trials may reach. They will erode the reputation of American military justice. And they will undercut American efforts to promote respect for the rule of law overseas.

Accordingly, we oppose the use of these military commissions under the current regulations.

We urge the Administration to address the following major deficiencies that remain.  All can be corrected without compromising national security:

1.  Unlawful Scope and Jurisdiction: The jurisdiction of the commissions extends to the trial of offenses and individuals properly only subject to the judicial authority of United States Courts.   Under the current regulations, military commissions still have the authority to try any non citizen, even someone apprehended in the United States, simply if the President believes that person is involved in international terrorism. The jurisdiction of the military commissions is not limited to the present conflict in Afghanistan, or with Al Qaeda.  It is not limited to offenses against the laws of war.  Rather the President appears to claim   permanent authority to use military commissions against any suspected terrorist at any time.  Whatever the legitimate scope of military tribunal jurisdiction during an armed conflict, the current regulations go far beyond it.

2.  Lack of independence and impartiality: The current regulations still fail to ensure that any commissions will be independent and impartial tribunals, free of command influence. Trial and review panels will be appointed by the Defense Department, which means the President will be, in effect, the judge, jury and prosecutor at every stage of the process. The regulations do not incorporate the provisions in the rules for courts martial that are intended to insure that both trials and appeals are conducted by independent and impartial tribunals.

3. No Judicial Review: The regulations do not provide for any judicial review of even the lawfulness of detention or the commissions’ jurisdiction.  Unlike defendants before military courts martial, defendants before commissions are given no right to appeal verdicts to an independent court outside the chain of command. To the contrary, the provisions of President Bush’s order purporting to disallow any court review still stand. No national security justification has been given for denying review to an independent court, such as the U.S. Court of Appeals for the Armed Forces.

4. Secret Evidence: The regulations would permit the government to withhold evidence from an accused, in violation of the fundamental due process right of an accused to confront the evidence against him.

5.  Secret Trials:  While we welcome the stated presumption that trials will be open, the regulations permit the military to close trials to the public simply by asserting general national security reasons without any standards or procedural protections.

6. Denial of Effective Assistance of Counsel: Defendants may hire civilian lawyers, but such lawyers may be denied access to proceedings or to evidence against their clients, even if they are cleared for access to classified information.

7.  Indefinite Detention:  The order allows indefinite detention with no legal basis. Indefinite detention violates international law, fundamental justice and the U.S. Constitution.  Detention must be authorized by domestic law or the Geneva Conventions on armed conflict.  In the latter case, individuals should enjoy the appropriate protections of the Conventions.

8.  Death Penalty:  The regulations create the risk that people may be executed after a trial conducted by a tribunal, which does not meet the fundamental standards of procedural fairness.  Many of the closest allies of the United States oppose the death penalty (as do many of the undersigned organizations) and will consider the death penalty as an obstacle to cooperation with the United States on prosecutions.

9.  Lack of congressional authorization:  The use of these military commissions has not been authorized by the Congress in violation of the provisions of Article I.

Alliance for Justice
American-Arab Anti-Discrimination Committee
American Civil Liberties Union
Arab American Institute
Asian American Legal Defense and Education Fund
Center for Constitutional Rights
Center for Democracy and Technology
Center for Economic and Social Rights
Center for National Security Studies
Council on American-Islamic Relations
First Amendment Foundation
Friends Committee on National Legislation
Government Accountability Project
Human Rights Watch
Lawyers Committee For Human Rights
National Black Police Association
National Association of Criminal Defense Lawyers
Open Society Institute
The Independent Institute
The Multiracial Activist