USA Guantánamo and beyond – The continuing pursuit of unchecked executive power "Using military or emergency courts to try civilians in the name of national security, a state of emergency or counter-terrorism poses a serious problem. This regrettably common practice runs counter to all international and regional standards and established case law. The Human Rights Committee has time and again asserted that military courts may only hear cases involving military personnel charged with crimes or offences relating to military matters. The Inter-American Court of Human Rights has established a wealth of case law in this regard and has also considered that bringing civilians before military courts is a violation of due process and the principle of the lawful judge'. The European Court of Human Rights has also asserted this principle: although military courts are not competent to try civilians in the European system, it has had to pronounce on the action of national security courts composed of civilian and military judges. The African Commission on Human and Peoples' Rights has held that the trial of civilians by military courts is contrary to articles 6 and 7 of the African Charter and the Basic Principles on the Independence of the Judiciary"? 271 Principle 5 of the UN Basic Principles on the Independence of the Judiciary states: Clearly, the US military commissions violate this principle, having been expressly devised under President Bush's 13 November 2001 Military Order to bypass the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts". 272 It is also clear that, for whatever reason, the US administration is intending to charge and try only a small number of the foreign detainees it has in its custody outside the sovereign territory of the USA. It cannot be argued that transferring those few detainees to the jurisdiction of the ordinary court system would place any insurmountable burdens on that system. Moreover, such a transfer to an independent and transparent system would send the message that the USA is serious about justice and human rights. The military commissions, in contrast, will be widely seen as the secretive, improvised, outdated and internationally illegal response that they are. Such show trials will undermine the very values that the USA claims to be in a struggle to uphold. 273 It was hardly a vote of confidence in this system, when the executive's chief military commission official, the Appointing Authority, said just before the pre-trial proceedings for the first four detainee charged, "this is the first time we've done commissions in 60 years, and we'll have to wait and see what happens as to how it goes and how smoothly it goes"2" Amnesty International was allowed to send an observer to these hearings in 2004. Her observations only further confirmed the organization's worst fears that this is a system unable to deliver a fair trial, and entirely a creature of the executive. In the pre-trial commission hearings for David Hicks, for example, the commission rejected the defence counsel`s attempt 271 273 UN Doc. E/CN.4/2004/60, 31 December 2003, para. 60. 274 272 Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, Section 1(f). John Altenburg, Jr.. Appointing Authority for the Office of Military Commissions. Defense Department Bricfing on Military Commission Hearings. 17 August 2004. 274 USA. Guantánamo: Military commissions Amnesty International observer's notes from proceedings, No 3, http://web.amnesty.org/library/Index/ENGAMRS11572004, No.2, http://web.amnesty.org/library/Index/ENGAMR511552004, and No. 1 http://web.amnesty.org/library/index/ENGAMRS11532004. USA Guantanamo and beyond - The continuing pursuit of unchecked executive power to bring in six expert witnesses to explain various aspects of international law and military law. This violates Article 8(2)(f) of the American Convention on Human Rights. 275 The prosecution asserted that the only law that binds the panel is “commission law", a set of rules and procedures drafted within the executive, with the President's Military Order as the final authority 276 The commission panel's ignorance of the law and the disparity of resources allocated to prosecution and defence team in a process controlled by the executive, were particularly obvious. So too was the low quality of interpreting and translation standards on several occasions the defence had to request that proceedings be halted because the quality of interpreting was so bad. Improvements have since been made in the allocation of resources to the defence teams and in the quality of intepreting. The Pentagon has said that fixing such problems is important because "everything having to do with the military commissions process is `like a fishbowl', being watched carefully by the media and representatives of nongovernmental organizations"." 277 The office of the Appointing Authority in the Pentagon continues to work on making changes to the commission procedures. On 28 March 2005, the spokesperson for the Appointing Authority told Amnesty International that it had passed no finalized further proposals on to the administration for its consideration. The spokesperson was not willing to specify what proposals were being worked on. It has been reported that they might include giving the commission's Presiding Officer a role more akin to a judge. The Presiding Officer is currently the only commission member with any legal training, and yet all panel members can rule on questions of law. In other words each member serves as a "judge" as well as a "juror". This contravenes Principle 10 of the UN Basic Principles of the Independence of the Judiciary which states that anyone selected for judicial office shall be individuals with appropriate training or qualifications in law". Proposals being worked on also reportedly include barring any "confession or admission that was procured from the accused by torture" As reported, the proposal would still leave statements extracted under torture (however defined by the administration) from individuals other than the defendant admissible by the commissions, as well as evidence coerced from the defendant or anyone else by methods (including manipulation of conditions of detention) that amount to cruel, inhuman or degrading treatment. .. 278 In any event, partial reforms of the military commission process cannot resolve its fatal flaws. Despite claiming to be a progressive force for human rights, the US administration continues to pursue its attempt to conduct military commissions, more than half a century after it last ran such trials. The Justice Department immediately and "vigorously disagree[d]" with Judge Robertson's ruling and said that the government would "continue to defend" the President's power to wage the "war on terror" and to have the 275 This provides for "the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts". The USA has signed the American Convention on Human Rights, thereby binding itself under international law not to undermine its object and purpose. 276 The Pentagon's procedures for the military commissions themselves contain the caveat: "In the event of any inconsistency between the President's Military Order and... any regulations or instructions issued... the provisions of the President's Military Order shall govern." This system, invented by the executive, provides no precedents or case law to which defence lawyers can refer when devising their legal strategy. Parties still working behind the scenes on military commissions. American Forces Information Service. 8 March 2005. 27% US is examining a plan to bolster the rights of detainees. New York Times, 27 March 2005. USA Guantánamo and beyond - The continuing pursuit of unchecked executive power 279 **280 military commission process "restored through appeal"." In its subsequent appeal brief, it argued that Judge Robertson's ruling "constitutes an extraordinary intrusion into the Executive's power to conduct military operations to defend the United States." Judge Robertson's ruling should be reversed, according to the executive, on the grounds that the Geneva Conventions do not give individuals judicially enforceable rights, but are instead “a matter of state-to-state diplomatic relations". As to President Bush's decision not to apply Geneva Convention protections to detainees captured in Afghanistan, the government argues such a determination is binding on the courts", and in such matters of foreign policy the "Executive must act without fear of judicial reversal”. Oral arguments in the US Court of Appeals for the District of Columbia Circuit were held on 7 April 2005. It was anticipated that a ruling would come in May 2005. Whatever the result, it is likely that it will be appealed to the US Supreme Court. If the US administration is allowed to proceed with its military commissions, it will set a dangerous precedent, and not just by setting an example that might be used in other countries to justify flouting international law. It will shift the balance between the state and the defendant in the USA. "Equality of arms" - the principle whereby both parties are treated in a manner ensuring that they have a procedurally equal position during the course of the trial, and are in an equal position to make their case is an essential criterion for a fair hearing, enshrined in Article 14(1) of the ICCPR.281 The military commissions expressly tip the balance in favour of the government in order to make convictions easier. Thus, in future, if the government fails to get its way in "terrorism" cases in the ordinary domestic courts, it might turn to military commissions. At a time when a majority of countries have turned against the death penalty, the US administration is proposing to allow military commissions to hand down death sentences against which there would be no right of appeal to any court. Under the Pentagon's procedures. the military commission is permitted "wide latitude in sentencing... The sentence determination should be made while bearing in mind that there are several principal reasons for a sentence given to those who violate the law", including punishment, protection of society, deterrence, and rehabilitation. While noting these criteria, however, the procedures stress that all sentences should be "grounded in a recognition that military commissions are a function of the President's war-fighting role as Commander-in-Chief of the Armed Forces of the United States and of the broad deterrent impact associated with a sentence's effect on adherence to the laws and customs of war in general"." Given President Bush's widely known support the death penalty on the theory that it is a deterrent, this guideline could be read as an invitation for the death penalty. 283 282 Once the President or if he chooses, the Secretary of Defense has made the final decision in any military commission case, the sentence "shall be carried out promptly". 7x4 279 Statement of Mark Corollo, Director of Public Affairs, on the Hamdan ruling. Department of Justice news release, 8 November 2004. 280 Hamdan v. Rumsfeld, Brief for appellants. In the US Court of Appeals for the District of Columbia Circuit, 8 December 2004. 281 The Human Rights Committee stated that the concept of "fair trial" in Article 14(1) "must be interpreted as requiring a number of conditions, such as equality of arms and respect for the principle of adversary proceedings." D. Wolf v. Panama, Communication No. 289/1988, (Views adopted on 26 March 1992), in UN Doc. A/47/40, pp. 289-290, para. 6.6. 283 Military Commission Instruction No. 7. Subject: Sentencing. Section 3A. US Department of Defense, 30 April 2003. 283 Only a unanimous vote by a commission panel of seven members may pass a death sentence. 284 Department of Defense Fact Sheet: Military commission procedures, p.3 USA Guantánamo and beyond - The continuing pursuit of unchecked executive power President Bush's record on clemency in capital cases to date is also well-known and is a matter for grave concern.“ 285 11. An executive in pursuit of execution - Zacarias Moussaoui The President believes the death penalty deters crime and saves lives. US Attorney General Alberto Gonzales, January 2005286 The spectre that has haunted legal proceedings against French national Zacarias Moussaoui, an alleged would-be 20th hijacker in the attacks of 11 September 2001, is that if the administration at any point was not allowed to get its way in the civilian justice system, it might decide to transfer the case by executive order to trial by military commission where the executive could play by its own rules. While recent events have caused this threat to diminish, the US administration's pursuit of the death penalty in this case has come into focus instead. 288 On 22 April 2005, after almost four years in solitary confinement, Zacarias Moussaoui pleaded guilty in federal court in Virginia to six counts of conspiracy in the 11 September attacks. Four of the counts carry the death penalty, and following the guilty plea, Attorney General Alberto Gonzales confirmed that the US Justice Department would continue to seek a death sentence against Moussaoui at his forthcoming sentencing. The Attorney General insisted that the Justice Department has acted fairly and patiently to bring Moussaoui to justice". Amnesty International believes that the case has illustrated the willingness of the US administration to violate international standards in driving an individual towards the death chamber and a failure on the part of the judiciary to stop it. 289 290 Zacarias Moussaoui was arrested in Minneapolis in August 2001 on an immigration violation after he sought training on how to fly a Boeing 747 aircraft and raised suspicion within the US intelligence community." Since the 11 September 2001 attacks, the US government has stated its intention to obtain a death sentence against him, while denying him access, on national security grounds, to potentially exculpatory witness testimony from alleged senior al-Qa'ida members in US custody elsewhere. A District Court ruled that the government could not seek the death penalty in such a case unless the defendant was allowed access to the witnesses. However, the government appealed and the US Court of Appeals for the Fourth Circuit overturned the decision. The Fourth Circuit ruled that the government could pursue the death sentence while not giving Moussaoui access to the “enemy combatant" witnesses, even though it agreed with the District Court that those witnesses "could provide material, favourable testimony on 285 George W. Bush's five-year term as Governor of Texas saw 152 executions in that state, including numerous cases which violated international law or safeguards, including child offenders, the mentally impaired, the inadequately represented and those whose guilt was in doubt. President Bush's first term in the White House saw the first federal execution in the USA since 1963. 286 Responses of Alberto R. Gonzales, nominee to be Attorney General of the United States, to written questions of Senator Richard J. Durbin, 287 If placed under the Military Order of 13 November 2001, a forcign national could also facc indefinite detention without trial or indefinite administrative detention after an acquittal. 288 Conspiracy to: commit acts of terrorism transcending national boundaries: commit aircraft piracy; destroy aircraft: use weapons of mass destruction; murder United States employees; and destroy property. Prepared remarks of Attorney General Alberto R. Gonzales on Zacarias Moussaoui, 22 April 2005. US Department of Justice, Washington, DC. Despite his guilty plea, he has reportedly maintained that he was not part of the 9/11 conspiracy, as the prosecution alleges, but a different one. 289 thid. 290 See pages 273-276, of the Final Report of the National Commission on Terrorist Attacks Upon the United States (the 9/11 Commission Report), August 2004. USA Guantánamo and beyond - The continuing pursuit of unchecked executive power Moussaoui's behalf. It ruled, however that there was a "remedy adequate to protect Moussaoui's constitutional rights", namely "substitutions" - written extracts of summaries of the interrogation statements of the witnesses to present to the jury. One of the three judges dissented from the decision to allow the government to pursue a death sentence under such circumstances: "This is a slim reed indeed upon which to base a jury verdict, especially where a man's life hangs in the balance... To say this is a 'remedy' must be of cold comfort to Moussaoui. The entire process is cloaked in secrecy, making if difficult. if not impossible, for the courts to ensure the provision of Moussaoui's rights... Because the majority decrees that this so-called 'remedy will fulfil this court's obligation to protect Moussaoui's constitutional rights, today justice has taken a long stride backward... Here, the reliability of a death sentence would be significantly impaired by the limitations on the evidence available for Moussaout's use in proving mitigating factors (if he is found guilty)... Because Moussaoui will not have access to the witnesses who could answer the question of his involvement, he should not face the ultimate penalty of death.”291 Article 14.3(c) of the ICCPR states that any criminal defendant must be allowed, “in full equality", to be able "to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him". Safeguard 5 of the UN Safeguards Guaranteeing Protection of the Rights of those Facing the Death Penalty require that capital defendants must only be tried by a process "which gives all possible safeguards to ensure a fair trial, at least equal to those contained in article 14 of the International Covenant on Civil and Political Rights". The USA is already becoming more and more isolated in a world that is inexorably moving away from the death penalty, with 120 countries currently abolitionist in law or practice. With its pursuit of the execution of Zacarias Moussaoui, it is moving still further into what is increasingly seen as an unacceptable government policy. 292 On 21 March 2005, the US Supreme Court declined to involve itself in the case. A month later, Zacarias Moussaoui pleaded guilty despite the government not having agreed to waive pursuit of the death penalty (in the US justice system, many defendants have pleaded guilty as part of an agreement with the prosecution to waive the death penalty). There have been questions raised about Moussaoui's mental competency on numerous occasions making a guilty plea under such circumstances raises further such questions. He is reported to have both requested the death sentence and to have vowed to fight it. At the time of writing, it was being proposed that jury selection for his sentencing trial begin on 9 January 2006, and the hearing itself to begin on 6 February 2006. 293 As Alberto Gonzales repeated numerous times in his written responses to Senators before they confirmed his nomination to Attorney General in February 2005, President Bush 291 USA v. Moussaoui, US Court of Appeals for the Fourth Circuit, 13 September 2004, Judge Gregory, concurring in part and dissenting in part. 292 In addition, under the Rome Statute of the International Criminal Court, the death penalty cannot be handed out for the worst crimes in the world, including genocide, war crimes, crimes against humanity and torture. In any event, the UN Safeguards guaranteeing the protection of the rights of those facing the death penalty prohibit retentionist countrics from passing death sentences in any tribunal other than a "competent court after legal process which gives all possible safeguards to ensure a fair trial, at least equal to those contained in article 14 of the International Covenant on Civil and Political Rights". USA v Moussaoui. Joint position regarding trial schedule. In the US District Court for the Eastern District of Virginia, Alexandria Division, 5 May 2005. 291 |