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casts doubt on whether such commissions are does not have the checks and balances built really needed at all.

into it that guarantee a fair, impartial and

independent process."Indeed, the government's decisions in the case of John Walker Lindh, an American cit- Major Mori and other military counsel izen accused of terrorism offenses for his assigned to the defense have also filed an association with Al Qaeda and the Taliban,

unusual brief in a Supreme Court habeas coramply demonstrates that criminal courts


brought by detainees remain a viable option for terrorism cases.

Guantánamo Bay. The brief opposes the govInstead of amending the president's order to make it applicable to citizens, the govern

ernment's position that the federal courts ment chose to proceed in federal district

lack jurisdiction over Guantánamo Bay in all court. The Lindh case shows that federal dis- cases and urges civilian review of military trict courts can be used to try Al Qaeda and

commission trials.?? Taliban prisoners, and casts serious doubts on the government's assertions that such The flawed rules governing military commiscourts cannot be used in such cases because

sions have accompanied a process for choosof concerns about security or safeguarding ing potential defendants that appears at least classified information.

as flawed, and clearly subject to political

interference. After repeated, lengthy delays, The deficiencies outlined above make it clear that trials by military cominissions will not

the Defense Department initially announced meet fundamental standards of justice, let

on July 3, 2003 that President Bush had alone the additional “super due process" designed six defendants to face nilitary required by the Constitution for decisions to commission trials. Protests from the United impose the death penalty,

Kingdom - including from Prime Minister

Tony Blair -- and from the Australian governChallenges to the

ment, led to conditions being placed on the

trials of British and Australian defendants Military Commissions

including that the defendants would not face

the death penalty and would serve sentences Career military lawyers appointed by the

in their home countries. These arrangeDepartment of Defense to represent

ments certainly make clear that political condetainees who face prosecutions before mil- siderations will have a substantial effect on itary commissions have added their voices

one's treatment in the military commission to those who are saying the commissions

system, cannot provide full and fair justice. According to Major Michael D. Mori, who

Meanwhile, while not directly relevant, the was assigned to defend an Australian

government's case against a Muslim chapdetainee who is yet to be charged, “The mil- lain at Guantánamo Bay, whom the governitary commissions will not provide a full ment initially accused of espionage and and fair trial. The commission process has aiding the enemy, appears to be collapsing. been created and controlled by those with a The treatment of this defendant raises disvested interest only in convictions."?' Lt. turbing questions about the professionalism Col. Philip Sundel, whose Yemini client of operations at Guantánamo Bay. This now faces conspiracy charges, will attempt defendant, who is an American citizen, to challenge the whole process, saying, “it faces justice before a regular court-martial,

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through 8 (July 2003) have been published together at 68 Fed. Reg. 39,374 (July 1, 2003) and will be cod

ified at 32 C.F.R. pt. 9. Charles Lane, “In Terror War, 2nd Track for Suspects," Washington Posi. Dec. 1, 2002.

* Military Commission Order No. 1, at $ 2 and $

41AXI). Military Order of Nov. 13, 2001: Detention, Treatment and Trial of Certain Non-Citizens in the

This requirement applies not only to prisoners of War Against Terrorism, 3 C.E.R. § 918 (2002). war and hut also to any other person accused of

“grave breaches” of the Geneva ('onvention (i.e., Modifications to the original attorney-client moni- those accused of war crimes), See art. 129 (Third toring rule issued in July 2004 were made early this Geneva Convention), and art. 146 (Fourth Geneva year. The new rules continue to allow monitoring at Convention). the government's discretion but require notice of any monitoring and impose a "firewall" that is supposed “The review panel is empowered to dismiss to ensure that any information obtained from moni- charges, order further proceedings, or reduce a toring is used for intelligence purposes only and is sentence in two types of cases. If the review not be shared with the prosecution.

panel decides that a ‘material error of law' has

occurred, the Appointing Authority must refer the * Alberto R. Gonzalez, "Martial Justice, Full and case to a military commission for further proFair," New York Times, Nov. 30, 2001 (op-ed). Judge ceedings consistent with the review panel's conGonzalez is counsel to the president.

clusions. If the review panel recommends that a

verdict should be disallowed or a sentence 'In response to the criticism that greeted the presi- reduced but does not find a 'material error of dent's military order, administration officials said a law,' its recommendations are forwarded to the new order setting forth procedures for military trials secretary of defense who may approve or disapwould clarify the procedures the tribunals would prove the review panel's decisions." apply and would protect the rights that had not been outlined in the original order. The new order was • Section 7(b)(2) of the Military Order of Nov. 13, issued in March 2002 and enumerated in general 2001 (which governs all subsequent orders) provides: terms, a number of rights - such as the presumption The individual shall not be privileged to seek any remof innocence, proof beyond a reasonable doubt and a

edy or maintain any proceeding, directly or indirectly, requirement of unanimous verdicts for the death or to have any such remedy or proceeding sought on penalty - that bad not been included in the president's the individual's behalf, in (1) any court of the United original order. While human rights and civil liberties States, or any State thereof, (ii) any court of any forgroups welcomed these improvements, they still con- eign nation, or (111) any international tribunal. cluded that the order suffered from fundamental Daws, such as the lack of judicial review or any other 16 Alberto R. Gonzalez, "Martial Justice, Full and independent review procedure. The ACLU analyzed Fair," New York Times (op-ed). Nov. 30, 2001. this order and laid out both the improvements from the original plan and the continuing fundamental 11 The cases, which have been consolidated and will flaws of the commissions in an interested persons be heard together, are Rasul v. Bush, No. 03-334 and memorandum, available

Al Odah v. United States, No. 0.3-343. Briefs that http:/archive.aclu.org/congress:10416020.html. For have been filed in the cases have been made available the next year, the Defense Department drafted a online by the Jenner & Block law firm at series of detailed military commission orders. In July http://www.jenner.com/news'news_item.asp?id=125 2003, the Department issued final rules for the com- 20724 missions. Military Commission Order No. 1 (March 2002) and Military Commission Instructions Nos. 1 12 Military Commission Instruction No. 8, at $ 71B).



All of the subsequent military orders are made subordinate to Military Commission Order No. 1, which contains the requirements for “protected information."

hehalf (other than a submission from his next of kini, the hearing panel's conclusion is only a recommendation that can be ignored by the political appointee who oversees the process and there is no opportunity for review outside the Defense Department.

* Classified Information Procedures Act (CIPA), 18 U.S.C. app. 3$ 5101).

** Manual of Courts-Martial. Military Rules of Evidence at $ 505(1}4XB), (E) (2002).

** See 18 U.S.C. app. 3 5(e); MRE at $ 505(1)(4)(E).

Military Commission Instruction No.4.

** Ex Parte Milligan sets forh the basic rule that military tribunals cannot be used against civilians accused of crime, even when characterized as violations of the "law of war," where there is no emeryency situation that prevents the courts (from being] open, and in the proper and unobstructed exercise of their jurisdiction." 71 C.S. at 127. Ex Parte Quirin, 317 U.S. 1(1942) permitted a military commission to be used also, during

ne of declared war, against German soldiers who were out of uniform but were wlau ful belligerents” who were “acting under the direction of the armed forces of the enemy." Id. at 37. Likewise, article 4 of the ICCPR only permits derogation from normal standards of justice in times of “public emergency which threatens the life of the nation and which is officially proclaimed" a standard not met here.


Military Commission Instruction Vo.1, at $ 6.

* Military Commission Instruction No. 2, at $ 3(A).

** Katherine Q. Seelye, “Pentagon Says Acquittals May Not Free Detainees," New York Times, March 22, 2002.

21 See Zadvydas v. Davis, 121 S. Ct. 2491, 2498-99 (2001).

2* We do not believe that Congress's use of force resolution authorized military tribunals. However, since the president's Military Order relies on that resolution, we must insist that the resolution's limitations be respected.

* Neil Lewis, "Lawyer Says Cuba Detainees Face Unfair System," New York Times, Jan. 22, 2004.

* If the government wants to describe the Guantánamo detainees as “enemy combatants," as it once again does in these draft rules, then it must treat them as POWs in accordance with the Geneva Conventions. It has not done so in the past and apparemly has no intention of doing so in the future. Even more significantly, it must repatriate the detainees when the "war" is over. Instead, the government is substituting a process of periodic review that will enable it to detain any individual whom the government regards as a continuing "threat" for the rest of the detainee's life. There is no precedent for that result in the law of war, or in our notions of duc process.

** Neil Lewis, “U.S. Charges Two at Guantánamo With Conspiracy," New York Times, Feb. 25, 2004.

2. Brief of the Military Attorneys Assigned to the Defense in the Office of Military Commissions As Amici Curiae, Odah v. United States, No. 03-343, filed Jan. 14, 2004.

** John Mintz, “Deals Reported Afoot for Detainees, but Lawyers Question Pacts for Clients Without Access to Counsel," Washington Post, Dec. 6, 2003, p. A6.

Furthermore, there are serious problems with the periodic review process that the government has proposed even assuming that the concept has some validity. The burden is on the detainee to prove that he is not a threat, the proceedings are non-adversarial (which presumably means that the government's witnesses are not subject to cross-examination), there is no provision for the detainee to subpoena witnesses or evidence in his

» John Mintz, “Guantánamo Bay Spy Cases Evaporate; Chaplain, Arabic Translator Now Face Only Lesser Charges," Washington Post, Jan. 25, 2004.

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