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Endnotes

Charles Lane, "In Terror War, 2nd Track for Suspects," Washington Post, Dec. 1, 2002.

Military Order of Nov. 13, 2001: Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism, 3 C.F.R. § 918 (2002).

Modifications to the original attorney-client monitoring rule issued in July 2004 were made early this year. The new rules continue to allow monitoring at the government's discretion but require notice of any monitoring and impose a “firewall" that is supposed to ensure that any information obtained from monitoring is used for intelligence purposes only and is not be shared with the prosecution.

Alberto R. Gonzalez, "Martial Justice. Full and Fair," New York Times, Nov. 30, 2001 (op-ed). Judge Gonzalez is counsel to the president.

In response to the criticism that greeted the president's military order, administration officials said a new order setting forth procedures for military trials would clarify the procedures the tribunals would apply and would protect the rights that had not been outlined in the original order. The new order was issued in March 2002 and enumerated, in general terms, a number of rights - such as the presumption of innocence, proof beyond a reasonable doubt and a requirement of unanimous verdicts for the death penalty - that had not been included in the president's original order. While human rights and civil liberties groups welcomed these improvements, they still concluded that the order suffered from fundamental flaws, such as the lack of judicial review or any other independent review procedure. The ACLU analyzed this order and laid out both the improvements from the original plan and the continuing fundamental flaws of the commissions in an interested persons memorandum, available

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"The review panel is empowered to dismiss charges, order further proceedings, or reduce a sentence in two types of cases. If the review panel decides that a 'material error of law' has occurred, the Appointing Authority must refer the case to a military commission for further proceedings consistent with the review panel's conclusions. If the review panel recommends that a verdict should be disallowed or a sentence reduced, but does not find a 'material error of law,' its recommendations are forwarded to the secretary of defense who may approve or disapprove the review panel's decisions."

Section 7(b)(2) of the Military Order of Nov. 13, 2001 (which governs all subsequent orders) provides: The individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual's behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal.

10 Alberto R. Gonzalez, "Martial Justice, Full and Fair," New York Times (op-ed), Nov. 30, 2001.

"The cases, which have been consolidated and will be heard together, are Rasul v. Bush, No. 03-334 and Al Odah v. United States, No. 03-343. Briefs that have been filed in the cases have been made available online by the Jenner Block law firm at

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12 Military Commission Instruction No. 8, at § 7(B).

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 apparently has no intention of doing so in the future. Even more significantly, it must repatriate the detainees when the "war" is over. Instead, the gov ernment 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 due process.

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

AMERICAN CIVIL LIBERTIES UNION____

behalf (other than a submission from his next of kin), 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.

* Ex Parte Milligan sets forth 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 emergency situation that prevents "the courts [from being] open, and in the proper and unobstructed exercise of their jurisdiction." 71 U.S. at 127. Ex Parte Quirin, 317 U.S. 1 (1942) permitted a military commission to be used also, during a time of declared war, against German soldiers who were out of uniform but were "unlawful 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.

24 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.

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

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.

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