USA Guantánamo 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. 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

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.

instructions issued.

***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 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.

* 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. 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.

281

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" 2 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

283

282

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"."

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

282 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. 27 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.

282 If placed under the Military Order of 13 November 2001, a foreign 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 Ibid.

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 Moussaou'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.”

5-291

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 2006.1

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.

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

294

supports capital punishment on the grounds that it is a deterrent To Amnesty International's knowledge, neither President Bush nor Attorney General Gonzales has ever cited the evidence for this assertion. Indeed, the death penalty has not been shown to have any special deterrent effect, and there is some evidence that the opposite can be true under certain circumstances. In its 1989 report on the use of capital punishment worldwide, Amnesty International, citing examples, noted that.

“Executions for politically motivated crimes may result in greater publicity for acts of terror, thus drawing increased public attention to the perpetrators political agenda. Such executions may also create martyrs whose memory becomes a rallying point For some men and women convinced of the legitimacy of their acts, the prospect of suffering the death penalty may even serve as an incentive. Far from stopping violence, executions have been used as the justification for more violence.......“

At a seminar organized by Amnesty International in 1985, France ́s then Minister of Justice, Robert Badinter, said:

"...history and contemporary world events refute the simplistic notion that the death penalty can deter terrorists. Never in history has the threat of execution halted terrorism or political crime. Indeed, if there is one kind of man or woman who is not deterred by the threat of the death penalty, it is the terrorist, who frequently risks his life in action. Death has an ambiguous fascination for the terrorist, be it the death of others by one's own hand or the risk of death for oneself. Regardless of his proclaimed ideology, his rallying cry is the fascist viva la muerte [long live deaths 296

The USA's well-known use of the death penalty did not deter the hijackers who committed the 11 September 2001 atrocities. The pursuit of the death penalty against the only person so far charged by the US government with being a part of that conspiracy threatens to make a martyr of the defendant, regardless of the reliability of his guilty plea.

In its September 2004 ruling allowing the administration to seek the death penalty, the Fourth Circuit majority noted that the case presented it with "questions of grave significance - questions that test the commitment of this nation to an independent judiciary, to the constitutional guarantee of a fair trial even to one accused of the most heinous of crimes. and to the protection of our citizens against additional terrorist attacks. These questions do not admit of easy answers." What Zacarias Moussaoui's execution, like any execution, is guaranteed not to provide are any answers to the questions that arise from violent crimes. including the crime against humanity that was committed on 11 September 2001. An execution guarantees nothing but another dead body. It cannot guarantee relief from the suffering of the bereaved or a reduction in killing. Instead, it carries with it the potential to create more grieving relatives, diminish respect for fundamental human rights, and generate more violence.

294 Alberto Gonzales was legal counsel to George W. Bush for part of the latter's term as governor of Texas. As was raised during his Senate nomination hearings, Mr Gonzales advice on clemency in Texas capital cases was disturbingly cursory and selective.

295 When the state kills... The death penalty: a human rights issue. Al Index: ACT 51/07/89, Amnesty International Publications, 1989, page 19.

296 Robert Badinter, statement at a seminar on the abolition of the death penalty and arbitrary, summary and extrajudicial executions, organized by Amnesty International at the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders. Milan, Italy, 27 August 1985. AI Index. ACT 05/27/85, 1985. More recently, see lixecute terrorists at our own risk. New York Times, 28 February 2001. The author of this article, Jessica Stern, served on the National Security Council from 1994 to 1995.