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USA: Guantanamo and beyond - The contriving pursuit of inchecked executive Portes



"according to lau” mean that, if domestic law provides for more than one instance of appeal as part of the process in criminal cases, the convicted person must be given cffective access to cach of these instances of appcal. Thc Committee has also stated that the “provisions of article 14 apply to all courts and tribunals” and that proceedings must "genuinely afford the full guarantees stipulated in article 14." Under Article 14. thcrcforc, thc appcal court must likewise be a competent, independent and impartial tribunal established by law“This will not be the case for those tried by military commission, who will have their convictions and sentences reviewed by a three-member panel of military officers, or civilians commissioned as military officers. They are selected by the Secretary of Defense, and can be removed by him for “good cause", which includes, but is not limited to, physical disability, military cxigency, or other circumstances”. This compares unfavourably, for example, to the judges of the Court of Appeals for the Armed Forces, who review decisions of US courts-martial. These judges are nominated by the President and confirmed by the Senato They arc civilians, and can only be removed by the President for ncglcct of duty, misconduct or disability. One of the three review panellists so far selected by Secretary Rumsfeld for the military commission process is someone who is described as his “good friend and sometime ncighbour”.

As also already noted, the Human Rights Committee, in a recent authoritative comment on “The Nature of the General Legal Obligation Imposed on States Parties to the Covenant" (General Comment 31) has stated that, the Covenant applies also in situations of armud contlict to which the rules of international humanitarian law are applicable. Whilc, in respect of certain Covenant rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive." 20% Judge Robertson noted that the common Article 3 requirement of trial before “a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples” has no fixed meaning The Human Rights Committee's General Comment clarifics that the mcaning should be interpreted in a way that is complementary to international human rights law. In its pursuit of untettered executive power, the US administration would like to ignore this. The judiciary should put it right. While Amnesty International has welcomed Judge Robertson's decision, it does not believe that he went far enough on all issues. -70

Not only must the judiciary rein in the executive, the legislature must not be tempted into compounding the executive's violations of international law. Judge Robertson noted that the government was seeking dismissal of Hamdan's claim on the grounds that the President has untrammelled power”, inherent in his role as Commander-in-Chief, to establish militan commissions Judge Robertson disagreed: "If the President does have inherent power in this ana it is quite limited." He also noted that "Congress has the power to amend those limits and could do so tomorrow". Amnesty International emphasizes that any legislative proposals mest ensure compliance with international law and standards. In this regard, Amnesty Internatonal notes the following stated by the UN Special Rapporteur on the independence of Ucars and lauters

2012 (230 198). 1 November 1991. Report of the HRC. UN Doc A/47/40 (1992). p. 218 para

to further information, see l St 4deepening van on lustice. Al index: AMR 51130/2004, to me. We wmnoni anglitran inde FNGAVR511202004

Henan Rights Computer. Gencral Comment Vo 31 on Article 2 of the Covenant: The Naturs of the Gral Legal Ob igaton Imposed on States Parties to the Covenant UN Doc. LE PRETRPA Revo 21 April 2004. para 11

For example. Judge Robertson kopted the adequacy of the review panel appointed by the come to Town convictions and sentences

USA Guantánamo and beyond - The continuing pursuit of unchecked executive power


"Using military or emergency courts 10 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 asseried 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 'lawfiil judge? The European Court of Human Rights has also
asseried this principle: alihough military couris are not competent 10 try civilians in
the European system, it has had to pronounce on the action of national security
courts composed of civilia and military judges. The African Commission on Human
and Peoples' Righis has held that the trial of civilians by military courts is contrary
10 articles 6 and 7 of the African Charter and the Basic Principles on the
Independence of the Judiciary" ?
Principle 5 of the CN Basic Principles on the Independence of the Judiciary states:
"Everyone shall have the right to be tried by ordinary courts or tribunals using
established legal procedures. Tribunals that do not use the duly established
procedures of the legal process shall not be created to displace the jurisdiction
belonging to the ordinary courts or judicial tribunals".

Clearly, the US military commissions violate this principle, having been expressly devised under President Bush's 13 November 2001 Military Order to by pass “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. Morcover, 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 arc. Such show trials will undermine the very values that the USA claims to be in a struggle to uphold.

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 detaince charged, this is the first time we've donc commissions in 60 ycars, and we'll have to wait and see what happens as to how it goes and how smoothly it goes”?. ? Amnesty International was allowed to send an observer to these hearings in 2004. Her obscrvations 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




UN Doc. E/CN.4/2004/60, 31 December 2003, para. 60.

Detention, Treatment, and Trial of Certa in Non-Citizens in the War Against Terrorism, Section 1(f). 23 John Altenburg, Jr.. Appointing Authority for the Olice of Military Commissions. Defense Dcpartment Bricfing on Military Commission Hearings. 17 August 2004.

USA: Guantánamo: Military commissions Amnesty International observer's notes from proceedings, No 3, http://web. amnesty orglibrary/IndeVENGANR.571572004, No.2, http://web.amuesti org library/IndeVENGAMR511552004, and No. I http://web.annics(K.org/libran/Indes/ENGAMR311532004.


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USA: Guantánamo and beyond = The contuiwing pursuit of unohecked executive power


to bring in six expert witnesses to explain various aspects of international law and military law. This violates Article 8(2)(1) of the American Convention on Human Rights. -* The prosecution asserted that the only law that binds thc pancl is “commission law”, a set of rules and procedures drafted within the executive, with the President's Military Order as the final authority

The commission panel's ignorance of the law and the disparity of resources allocated to prosecution and defence tcam in a process controlled by the cxccutive, were particularly obvious. So too was thc low quality of interpreting and translation standards – on scieral 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', bæing watched carefully by the media and representatives of nongovernmental organizations" 27?

The office of the Appointing Authority in thc 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 Judician 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 amy “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 ba methods (including manipulation of conditions of detention) that amount to cruel, inhuman or degrading treatment.

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 disagreeld]" 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


This provides for the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses of experis or other persons who may throw lighı on the facts”. The USA has signed the American Convention on Human Rights, thereby binding itself under interational Law Dot to undermine its object and purpose.

The Pentagon's procedures for the military commissions themselves contain the caveat “In the avent of any inconsistency between the President's Military Order and any regulations or instractions issued the provisions of the President's Military Order shall govern." This system, i ented by the crocutii c. provides no precedents or case law to which defence lawyers can refer when devising their egal strategy

* xix Vai* r&antg behind the scenes on military commissions. American Forces Information Sanice. 8 Warch 2005

Escrapering a plan to bolster the righis oj de lainees. New York Times, 27 March 2005.

USA Guantanamo and beyond The continuing pursuit of unchecked executive power



military commission process “restored through appeal”. In its subsequent appeal brief, it argued that Judge Robertson's ruling “constitutes an extraordinary intrusion into the Exccutive'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 fouting 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.- 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 tum 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 “widc 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 thc broad deterrent impact associated with a sentence's cffect 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

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"? ?**




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Statement of Mark Corollo, Director of Public Affairs, on the Hamdan ruling. Department of Justice news release, 8 November 2004,

Ilamdan v. Rumsfeld, Bricf for appellants. In thc US Court of Appcals for thc District of Columbia Circuit, 8 December 2004.

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. Wolfv. Panama. Communication No. 289/1988. (Views adopted on 26 March 1992), in UN Doc. A/47/40, pp. 289-290, para. 6.6.

Military Commission Instruction No. 7. Subject: Sentencing. Section 3A. US Department of
Defense, 30 April 2003.

Only a unanimous vote by a commission panel of seven members may pass a death sentence.
Department of Defense Fact Shect: Military commission procedures, p. 3




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USA Guantanamo and beyond - The continuing pursuit of monecked executive power

President Bush's record on clemency in capital cases to date is also well-known and is a matter for grave concern.


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11. An executive in pursuit of execution - Zacarias Moussaoui

The President believes the death penalty deters crime and saves lives.

US Attorncy General Alberto Gonzales, January 2005285 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. 25? 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.

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" 289 Amnesty International believes that thc casc 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.

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 cxculpatory 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 appcalcd and thc US Court of Appcals 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



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. thc inadequatcly represented and those whosc guilt was in doubt. President Bush's sirst lcrm 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. 28? 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.

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 Allorney General Alberto R. Gonzales on Zacarias Moussaoui, 22 April 2005. US Department of Justice, Washington, DC. Despitc his guilty plca. hc has reportedly maintained that he was not part of the 9/11 conspiracy, as the prosecution alleges, but a different one.


289 Thid.


See pages 273-276, or the Final Report of the National Commission on Terrorist Attacks Upon the United Statcs (the 9/11 Commission Report), August 2004.

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