Nizkor Int. Human Rights Team Derechos Human Rights Serpaj Europe Information [Part II: iii) messages] 16Nov01
i) BUSH ORDER ON MILITARY TRIBUNALS IS FURTHER EVIDENCE THAT GOVERNMENT IS ABANDONING DEMOCRACY'S CHECKS AND BALANCES.
WASHINGTON -- The American Civil Liberties Union is deeply disturbed by President Bush's executive order allowing special military tribunals to try non-citizens charged with terrorism. The tribunals would even reach non-citizens in the United States, including lawful permanent residents.
To our knowledge, the move to establish a military tribunal when Congress has not declared war is unprecedented.
We do not believe that the Administration has shown that the constitutional jury trial system does not allow for the prosecution of those accused of terrorist activities. Absent such a compelling justification, the President's decision is further evidence that the Administration is totally unwilling to abide by the checks and balances that are so central to our democracy.
The use of military tribunals would apparently authorize secret trials without a jury and without the requirement of a unanimous verdict and would limit a defendant's opportunities to confront the evidence against him and choose his own lawyer. What's worse, these important legal protections would be removed in a situation where defendants may very well be facing the death penalty.
It is difficult to understand how the Administration can justify the use of a tribunal when the United States has successfully tried in our courts non-citizens accused of terrorist acts, organized crime, and others in situations where the safety of jurors and the disclosure of government intelligence methods were at issue.
As the prosecutions of the 1993 World Trade Center bombers and Oklahoma City bomber Timothy McVeigh demonstrate, the government has managed to protect the safety and identity of jurors while achieving convictions in terrorism cases. And there is already a system established to handle classified information in the course of a trial; it is called the Classified Information Procedures Act. For decades, CIPA has adequately balanced national security and due process concerns. The government has made no showing that CIPA procedures would not be adequate in these circumstances as well.
Further, it would be hypocritical of the United States to impose such a tribunal when we have repeatedly protested the use of such courts against U.S. citizens abroad.
Congress has already given the Administration and the Justice Department virtually everything they asked for to fight terrorism. This latest move, combined with the Justice Department's announced intentions to eavesdrop on attorney conversations with inmates and to begin interviewing foreign visitors to the United States, demonstrates the government's increasing willingness to circumvent the requirements of the Bill of Rights.
We call on Congress to exercise its oversight powers before the Bill of Rights in America is distorted beyond recognition.
Statement of Laura W. Murphy, Director ACLU Washington National Office
[Source: ACLU - 14nov01] ---------------------------------------------------------------------
ii) HUMAN RIGHTS WATCH LETTER TO PRESIDENT BUSH URGING HIM TO RESCIND THE EXECUTIVE ORDER.
November 15, 2001
President George W. Bush The White House 1600 Pennsylvania Avenue NW Washington, DC 20500
Dear President Bush,
We are writing to express our profound concern with the new Executive Order on the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, issued on November 13, 2001. We recognize that the existing state of emergency in the United States permits certain derogations of internationally protected human rights. Nevertheless, the broad reach of the executive order sacrifices fundamental rights to personal liberty and to a fair trial that go far beyond what is permitted even in times of crisis.
The United States has routinely condemned such gross transgressions of basic due process rights when committed by other governments because they violate binding international law to which the U.S. government and over 140 other governments have subscribed. For example, the United States has:
- criticized the military courts in Peru that convicted U.S. citizen Lori Berenson for terrorism without adequate due process; indeed, the State Department called on Peru to retry the case "in open civilian court with full rights of legal defense, in accordance with international judicial norms."
- condemned Nigeria for convicting and executing author and environmental activist Ken Saro-Wiwa and eight other activists after a trial before a special military court appointed by the government.
- criticized the manner in which military tribunals are used to try accused terrorists in Egypt, pointing out in its most recent annual report on human rights in that country that "military courts do not ensure civilian defendants' due process before an independent tribunal.
- expressed great concern about trials of foreigners, including Americans, for espionage before closed tribunals in Russia.
If the Executive Order is implemented, it will do permanent damage to the United States' ability to champion human rights and the rule of law around the world. It will undercut the U.S. government's efforts to protect the rights of U.S. citizens before foreign tribunals. And it will undermine the human rights standards that you have said are key to distinguishing terrorism from lawful conduct.
The Executive Order raises important concerns regarding U.S. obligations under the International Covenant on Civil and Political Rights (ICCPR), which the U.S. ratified in 1992. Article 4 of the ICCPR does permit a state to take measures derogating from its obligations under the Covenant in time of public emergency that threatens the life of the nation and is officially proclaimed. The U.S. declaration of a national emergency on September 14 may be considered to have met that condition, although to our knowledge the required formal notification of the U.N. Secretary-General has not occurred.
However, a state's ability to derogate from the ICCPR is not unlimited. Derogation is never permitted from certain rights, such as the right to be free from torture (article 7) and the prohibition of ex post facto laws (article 15). Otherwise, a state may derogate from its obligations under the ICCPR only "to the extent strictly required by the exigencies of the situation" and provided that such measures are not inconsistent with its other obligations under international law. The Human Rights Committee, the international body charged with interpreting the ICCPR and monitoring compliance with it, states in its General Comment on article 4 that "This condition requires that States parties provide careful justification not only for their decision to proclaim a state of emergency but also for any specific measures based on such a proclamation..[T]hey must be able to justify not only that such a situation constitutes a threat to the life of the nation, but also that all their measures derogating from the Covenant are strictly required by the exigencies of the situation."
The U.S. must thus meet a high burden to show that the rights circumscribed under the Executive Order meet the standard for derogating from rights under the ICCPR. As discussed below, the Executive Order fails to meet this burden as it sharply curtails the right to liberty and security of the person under article 9 and the right to a fair trial under article 14. These rights not only are found in international law but are central to the fundamental rights of due process in the United States.
RIGHT TO LIBERTY AND SECURITY OF PERSON
Section 2 of the Executive Order permits the arrest and detention of persons on grounds that are vague and overbroad. It allows taking a person into custody if the President has "reason to believe" that the individual took part in "acts of international terrorism" against the United States. Because neither the meaning of "international terrorism" nor the nature of proscribed complicity is defined, the Executive Order is an extreme derogation of the ICCPR article 9 prohibition against arbitrary arrest and detention. Indeed, given the possibility that these provisions could be interpreted to proscribe conduct that was not already criminal, the Executive Order could even run afoul of the ICCPR's nonderogable prohibition of ex post facto criminal laws.
In addition, Section 3 of the Executive Order risks rendering ICCPR article 9 effectively meaningless by providing for conditions of detention that are distinct from those under existing U.S. law. Most significant are not the protections afforded detainees - including humane treatment, adequate food and water, access to health care - but those fundamental protections left off the list. There is no requirement, for example, that persons detained under the Executive Order be told the reason for their arrest or be promptly informed of charges against them; that persons deprived of their liberty be brought before a judicial authority who can decide on the lawfulness of their detention; or that those unlawfully arrested or detained shall have an enforceable right to compensation. Effectively the Executive Order allows for the arrest and indefinite detention of persons without charge and without legal recourse should they be unlawfully held. This is a clear abrogation of the fundamental right to liberty and security of person, well beyond the derogation permitted under article 4 of the ICCPR.
RIGHT TO A FAIR TRIAL Human Rights Watch believes the open-ended provisions for the trial of persons under the Executive Order also exceed the limits of acceptable derogation of the right to a fair trial under international law. Although the mere establishment of a military commission and various procedures set out in the Executive Order are not necessarily in violation of international law, the absence of key provisions regarding certain fundamental rights is a basis for extreme concern.
Section 4 of the Executive Order states that at a minimum all trials shall be "full and fair," but leaves the specifics open to future orders and regulations. For instance, there are no provisions for determining whether and to what extent trials should be public, nor even a requirement that judgments be made public. There is no requirement of a presumption of innocence, or that defendants have access to the evidence submitted against them, or even that proof of guilt be established beyond a reasonable doubt. It is left undetermined to what extent defendants will have access to legal counsel of their choosing, whether they will be able to communicate with counsel, and whether adequate time and facilities will be provided for a defense. No protection is provided against forced confessions.
Section 7 of the Executive Order states that a terrorist suspect "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" before a U.S. or any other court. Indeed, there is not even a provision for appellate review by a separate military commission panel, only non-judicial review by the President or the Secretary of Defense as the President's designate. This denies the defendant the right to an appeal provided under international law, which is especially troubling because the Executive Order expressly contemplates military commissions handing down death sentences. It also denies the right to effective redress to all persons, including U.S. citizens, who might be affected adversely by the law.
The comments made yesterday by Attorney General Ashcroft do nothing to correct these severe deficiencies. He claimed that because the terrorists responsible for the September 11th attacks committed war crimes, they "do not deserve the protection of the American Constitution." But the U.S. government has repeatedly argued that people accused of war crimes deserve full due process protection. That is certainly the case for U.S. soldiers who might be accused of war crimes by foreign courts, and it has even been true of alleged war criminals in Bosnia and Rwanda. The United States cannot credibly insist on due process when others are the victims if it refuses to accord the same due process when Americans are the victims.
Human Rights Watch believes the Executive Order is contrary to fundamental principles of human rights. While the rights in question may be derogated from in times of emergency, the U.S. must show that this is being done only to the extent strictly required by the exigencies of the situation. The far-reaching and ambiguous reach of the Executive Order strongly indicates that this is not the case. It is hard to imagine such a military commission escaping criticism by the U.S. government if created by another government. It is wrong and unlawful for the U.S. government to arrogate to itself the power to transgress these well established protections of international human rights law.
We urge you to rescind the Executive Order. Should any derogation from the rights provided under the ICCPR prove necessary, it should be done in a manner consistent with the strict requirements of international law.
Sincerely, /s/ Kenneth Roth Executive Director
cc: Vice President Richard Cheney The Honorable Colin Powell, Secretary of State The Honorable Donald Rumsfeld, Secretary of Defense The Honorable John Ashcroft, Attorney General The Honorable Condoleezza Rice, Assistant to the President for National Security Affairs -------------------------------------------------------
iii) PRESIDENTIAL ORDER ON MILITARY TRIBUNALS THREATENS FUNDAMENTAL PRINCIPLES OF JUSTICE.
Amnesty International is deeply troubled by the Military Order signed by President George W. Bush on 13 November allowing for the trial by special military commissions of non-US citizens suspected of involvement in "international terrorism."
Since the attacks in the USA on 11 September, Amnesty International has been calling for anyone suspected of involvement in these crimes to be brought to justice in accordance with international standards for a fair trial. This sweeping presidential order bypasses those fundamental principles, in contravention of US obligations under international law, specifically the International Covenant on Civil and Political Rights, ratified by the USA in 1992. As such it is unacceptable and should be revoked.
Amnesty International is particularly concerned that the Military Order:
- is discriminatory by affording foreign nationals a lower standard of justice than US nationals;
- gives unfettered and unchallengeable discretionary power to the executive to decide whom will be prosecuted and under what rules, as well as to review convictions and sentences. This is inconsistent with the principle of the separation of the executive and the judiciary;
- expressly bypasses the normal principles of law and rules of evidence applied in the trials of people charged with criminal offences in the US courts;
- provides no right of appeal against conviction or sentence to a higher court, or access to redress for any human rights violations that may occur during arrest, detention or prosecution;
Amnesty International believes that the Military Order creates a parallel system which violates fundamental principles of justice in any circumstances, including in times of war. For example, the 1949 Geneva Conventions, ratified by the USA in 1955, require that prisoners of war must be tried in courts which guarantee fundamental rights of fairness, including the right of appeal.
Amnesty International is particularly alarmed that the death penalty may be imposed by such a tribunal. International standards require that the legal process in any capital proceedings provide "all possible safeguards" to ensure a fair trial, including the right to appeal.
The Military Order creates the risk that people may be executed after a trial conducted by a court whose decision cannot be appealed but only reviewed by the executive who selected the individual for prosecution in the first place.
Amnesty International believes that the Military Order threatens to severely undermine, rather than reinforce, confidence in the administration of justice and maintenance of the rule of law. The organization considers that in proceedings undertaken pursuant to this order, justice will neither be done, nor seen to be done.
Times of crisis pose particular challenges to governments. It is precisely in such times that the principles of fair justice must be scrupulously upheld. The suffering of the victims of the attacks of 11 September, their families, and the public at large, deserves no less.
[Source: News Release Issued by the International Secretariat of Amnesty International - AMR 51/165/2001, 202/01 - 15 November 2001] RELATED LINKS - Military Order Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism. http://www.derechos.org/nizkor/terror/miltrial.html - For full text of the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001", click on the link below and enter 'HR 3162' in the search box. http://thomas.loc.gov/ also http://www.epic.org/privacy/terrorism/hr3162.html - The Prospect of Domestic Bioterrorism. By Jessica Stern. Council on Foreign Relations, Washington, D.C., USA. Jul/Aug, 1999. http://www.cdc.gov/ncidod/EID/vol5no4/pdf/stern.pdf - EFF Analysis Of The Provisions Of The USA PATRIOT Act. http://www.eff.org/Privacy/Surveillance/Terrorism_militias/20011031_eff_usa_ patriot_a nalysis.html
- EU "Conclusions" on counter-terrorism http://www.statewatch.org/news/2001/oct/concl.pdf -- FIN DEL MENSAJE END OF MESAGGE EINDE BERICHT FIM DA MENSAGEM FINE DEL MESSAGGIO ENDE NACHRICHT FIN DEL MENSAJE END OF MESAGGE EINDE BERICHT FIM DA MENSAGEM FINE DEL MESSAGGIO ENDE NACHRICHT ************************************************************************
This Information is edited and disseminated by Nizkor International Human Rights Team. Nizkor is a member of the Peace and Justice Service-Europe (Serpaj), Derechos Human Rights (USA) and GILC (Global Internet Liberty Campaign).