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Military Tribunals Fall Short of Standards, Say US Rights Groups

22 March 2002

While Pentagon chief Donald Rumsfeld Thursday insisted that military tribunals for al-Qaeda and Taliban suspects being held at the United States naval base at Guantanamo Bay, Cuba, will be "fair and balanced," U.S. human rights groups said they fell far short of minimum due-process standards.

While the rules governing the military tribunals were substantially improved from the original proposals put forward by the administration of President George W. Bush last November, they still violate basic procedural rights, including and especially a right to appeal to civil courts independent of the executive branch, according to New-York-based Human Rights Watch (HRW).

"The administration went a long way towards meeting human rights concerns and preserving the reputation of the U.S.," said HRW's U.S. program director Jamie Fellner, "but, under the rules, the president still remains both prosecutor and judge."

"There is no security rationale or other justification for denying persons tried by the commissions the right of appeal to a court outside the military chain of command," Fellner added.

In presenting the new rules, Rumsfeld and the administration depicted the tribunals as similar to courts-martial, rather than the far more summary and secret procedures which were first proposed.

Under the new regulations, defendants will be accorded the presumption of innocence, meaning that prosecutors will have to prove guilt beyond a reasonable doubt. Defendants will also not be compelled to testify or to incriminate themselves. They will be given the right to hire a civilian lawyer in addition to the military advocate assigned by the tribunal. And death sentences can only be imposed by a unanimous decision, as opposed to the majority decision originally planned, by a three-judge panel.

Nonetheless, rules of evidence will be relaxed to make convictions easier. For example, evidence which a "reasonable person" would consider relevant may be considered, a much lower standard than the far more restrictive rules of evidence which apply to U.S. civilian courts. In addition, some evidence may be kept secret from defendants' lawyers who do not have a sufficiently high security clearance.

But the most important failure in the new scheme, according to the human rights groups, is the inability of defendants to appeal to the civil courts. Instead, defendants may appeal only to a higher military court which is answerable to the president.

"The administration is assuring us that the trials will be fair and therefore no truly independent judicial review is necessary," said Elisa Massimino, director of the Washington office of the Lawyers Committee for Human Rights. "Experience tells us otherwise: no system is perfect, and independent review is essential."

"Getting this right is important," she added, "not only to ensure the fairness of the process on its own terms, but also because the world is watching what we do."

HRW has noted that U.S. protests against others countries' use of military tribunals without the right of appeal to civilian courts will now sound hollow.

"If, in fact, they will allow no appeal to a civilian body independent of the executive branch - putting the lives of defendants solely in the hands of the President - then they will not respect basic American, and international, ideals of fairness and justice," said Timothy Edgar, legislative counsel for the American Civil Liberties Union.

"For the United States to maintain any moral authority in its fight against terrorism, these military tribunals...must be implemented in accordance with core American legal and social values," he added.

Jim Lobe
Published by © 2002

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