USA: Guantánamo and beyond - The continuing pursuit of unchecked executive power of detainees. It subsequently transpired that the authorities had responded by moving him into the general population wing of Camp Delta, but had removed other detainees from the cells that were within four cells of his. Under the camp rules, there can be no communication between detainees more than four cells apart from each other. In other words, the government had placed Salim Ahmed Hamdan into de facto isolation. His mental health reportedly began to deteriorate again. His military lawyer challenged that the government was in contempt of Judge Robertson's ruling. Although the government rejected this assertion, Salim Ahmed Hamdan was moved out of this isolation on 21 January 2005, more than two months after the judicial order. Before this matter had come to oral argment before Judge Robertson in late October 2004, the government had refused to move Salim Ahmed Hamdan out of solitary confinment despite "credible evidence of the risk of harm to Hamdan should his detention under these conditions continue" - on the grounds that it "would create an undue risk of destroying the environment that the military is trying to create at Guantanamo in order to facilitate intelligence gathering". From this example alone, it seems clear that the US administration is willing to subject people to torture or other cruel, inhuman or degrading treatment in the name of national security, and avoid judicial scrutiny for as long as possible. It is unsurprising, then, that it has devised military commissions rules that will allow evidence extracted under torture or ill-treatment to be admitted. 260 Indeed. the military commission rules require the commissions to violate several provisions of international treaties to which the USA is a state party. If the commission decides that a piece of evidence would have "probative value to the reasonable person", it "shall" be admitted. In other words, if, for example, a detainee makes a statement after being subjected to the humiliation of urinating on himself while shackled for 18 hours and kept in extreme temperature conditions, and if the commission panel believes that that statement would have probative value to the reasonable person, it must be entered into evidence. Other basic fair trial rights enshrined in Article 14 of the ICCPR include: The right to equality before the courts [Article 14.1]- only foreign nationals will face trial by military commission, in violation of the prohibition on the discriminatory application of fair trial rights. The Military Order gives no justification for restricting military commissions to foreign nationals. The Human Rights Committee has stated that "Aliens shall be equal before the courts and tribunals, and shall be entitled to a fair and public hearing by a competent. independent and impartial tribunal established by law in the determination of any criminal charge... Aliens are entitled to equal protection by the law. There shall be no discrimination between aliens and citizens in the application of these rights.261 Respect for human dignity and freedom from discrimination are at the heart of international human rights and humanitarian law. For example, Article 75 of Additional Protocol 1 to the Geneva Conventions, guarantees freedom from discrimination, including on the basis of race, religion or nationality. The right to a fair and public hearing before a competent, independent and impartial tribunal established by law [Article 14.1]- the military commissions will neither be, nor be seen to be, independent of the executive. The executive selects the defendant; the chief prosecutor; the chief defence counsel; the commission panel (ie, 260 Swift v. Rumsfeld, Order granting motion to hold petition in abeyance. US District Court, Western District of Washington, 11 May 2004. 261 Human Rights Committee. General Comment 15. The position of aliens under the Covenant (Twenty-seventh session, 1986), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRIGEN\Rev.1 at 18 (1994), para. 7. USA Quantanamo and beyond - The continuing pursuit of unchecked executive power the “judge” and “jury"); and the panel that reviews verdicts. The executive will make the final decision in any case, including whether a condemned defendant will live or die. The whole system is an entirely closed executive loop. Even if the defendant is acquitted, it is the executive which will determine whether he is released or sent back into potentially indefinite administrative detention as an “enemy combatant". The fact that they are made up of members of the armed forces judging members of the presumed "enemy", under the auspices of the Commander-in-Chief of the Armed Forces, raises concerns about the commissions' impartiality. Neither, in Amnesty International's opinion, are the commissions "competent" or properly "established by law". The right to a hearing before a competent tribunal requires that the tribunal has jurisdiction to hear the case. A competent tribunal is given this power by law: it has jurisdiction over the subject matter, territory and person, and the trial is conducted within an applicable time as prescribed by law. The US military commission is an executive body set up by presidential order. Although the Military Order cites legal references as its basis, there is no express congressional statute establishing the military commissions. Nor should there be. There is a growing international legal consensus against the use of military tribunals of any kind to try international crimes, and in any event they should not be used to try civilians (see below) The right to adequate time and facilities for the preparation of one's defence and to communicate with counsel of one's own choosing [Article 14.3(b)] – the defendant and his lawyer may be denied access to “protected information“, so broadly defined that it could exclude a wide range of documents or other evidence. The commission's presiding officer, either of his or her own accord or at the request of the prosecution, can either withhold the “protected information" from documents made available to the defendant and defence counsel or substitute a summary of what has been withheld, without the defence being able to examine if the substitution was a fair representation of the withheld evidence. The principle of equality of arms, included w the concept of a fair trial under the provisions of Article 14(1) as well as other provisions of Article 14, is thus undermined. The prosecution - but not the defence woud know the details of the “protected information". This impedes the defence's ability to prepare the case and to defend against the accusation. In addition, the military corrmission procedures expressly authorize the military to engage in “MONONG of Communications” between the defendant and his lawyers "for security or intelligence purposes", in violation of Article 143/5) which the Human Rights Commerce has said requres "course" to communicate with the accused in conditions ghuge fac respect for de contiacacay of their communications”""" Overarching mda avae of the rest to prepare a defence is the fact that the executive can make up seu roky sie prawodros 2 si træ Kawdy of as pooodzes and rules Auge istotoot at any nice make planning, and preparing effectively for trial an mardie task for defence 29ION The right to a trial without undue delay 'Artce 430) - te first charges were av max une fobrasen 2006, more de veyors fic is devos zvod z USA Guantánamo and beyond - The continuing pursuit of unchecked executive power Guantánamo (they had been held elsewhere before that). For example Salim Ahmed Hamdan was taken into custody in Afghanistan in late 2001, but not charged until July 2004. As already noted, he was held in solitary, virtually incommunicado, confinement for a year. In a case from Uruguay, where a detainee was held incommunicado for four to six months (the precise dates are disputed), and his trial by military court on charges of subversive association and conspiracy to violate the constitution began after five to eight months, the Human Rights Committee held that Article 9(3) of the ICCPR had been violated "because he was not brought promptly before a judge or other officer authorized by law to exercise judicial power and because he was not tried within a reasonable time".264 The executive maintains complete control over the timing of the proceedings. The executive could, if it so wanted, keep an individual in untried detention for any length of time before, if ever, bringing him to trial. If convicted and sentenced to a prison term, the length of time served in administrative detention as an "enemy combatant" will not be taken into account. If acquitted, the defendant could be sent back into administrative detention if the executive determined that he remained a threat or had "intelligence value”. 365 The right to a lawyer of one's own choosing [Article 14.3(d)] - even if the defendant is able to retain a US civilian lawyer with national security clearance (he will not be able to choose a non-US national, for example, a lawyer from his own country) he will still be represented by a military lawyer, even if that goes against the defendant's wishes. The right to trial in one's presence [Article 14.3(d)]. This applies even if the press and public are excluded for reasons of national security [Article 14.1]. The military commission authorities can decide to close proceedings to the defendant as well as the media, for any one of a broad range of reasons, including to protect "intelligence and law enforcement sources, methods, or activities" or "other national security interests. Only the defendant's main military lawyer will be able to attend, but he or she will not be able to disclose details to the defendant. Thus, for example, if the evidence is a statement made by the defendant under torture or ill-treatment to a CIA agent in Afghanistan, and the evidence is heard in closed session, the military lawyer will not be able to discuss it with the defendant to get his version of events. The denial of the right to trial in one's presence is what Judge Robertson found rendered the military commission procedures unlawful (see above). The right to defend oneself in person [Article 14.3(d)]. As written, the military commission procedures state that a defendant "must be represented at all relevant times" by a military lawyer. In the preliminary hearings in 2004, Ali Hamza Ahmed Sulay man al Bahlul revealed that he wished to defend himself. Whether he can or not appears to be unresolved, and is still pending with the Appointing Authority of the military commissions. However, even if he is allowed to represent himself, he presumably will not have access to closed sessions or classified evidence, and therefore be unable to defend himself properly. The right to review of conviction and sentence by a higher tribunal according to law [Article 14.5] - The Human Rights Committee has stated that this “guarantee is not confined to only the most serious offences", 266 It has said that the words 264 Pietraroia v. Uruguay, (44/1979), UN Doc. A/36/40, 27 March 1981, paras. 13.2 and 17. 265 Department of Defense, Military Commission Instruction No. 7. Sentencing. Section 3A, 30 April 2003. 266 General Comment 13. para. 17. USA Guantanamo and beyond - The continuing pursuit of unchecked executive power 267 "according to law" mean that, if domestic law provides for more than one instance of appeal as part of the process in criminal cases, the convicted person must be given effective access to cach of these instances of appeal. The Committee has also stated that the "provisions of article 14 apply to all courts and tribunals" and that proceedings must "genuinely afford the full guarantees stipulated in article 14" Under Article 14. therefore, the appeal court must likewise be a competent, independent and impartial tribunal established by law. This will not be the case for those tried by military commission, who will have their convictions and sentences reviewed by a three-member panel of military officers, or civilians commissioned as military officers. They are selected by the Secretary of Defense, and can be removed by him for "good cause", which "includes, but is not limited to, physical disability, military exigency, or other circumstances". This compares unfavourably, for example, to the judges of the Court of Appeals for the Armed Forces, who review decisions of US courts-martial. These judges are nominated by the President and confirmed by the Senate They are civilians, and can only be removed by the President for neglect of duty, misconduct or disability. One of the three review panellists so far selected by Secretary Rumsfeld for the military commission process is someone who is described as his "good friend and sometime neighbour”. -269 268 As also already noted, the Human Rights Committee, in a recent authoritative comment on "The Nature of the General Legal Obligation Imposed on States Parties to the Covenant" (General Comment 31) has stated that, "the Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive. Judge Robertson noted that the common Article 3 requirement of trial before “a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples” has no fixed meaning The Human Rights Committee's General Comment clarifies that the meaning should be interpreted in a way that is complementary to international human rights law. In its pursuit of unfettered executive power, the US administration would like to ignore this. The judiciary should put it right. While Amnesty International has welcomed Judge Robertson's decision, it does not believe that he went far enough on all issues.270 Not only must the judiciary rein in the executive, the legislature must not be tempted into compounding the executive's violations of international law. Judge Robertson noted that the government was seeking dismissal of Hamdan's claim on the grounds that the President has “untrammelled power", inherent in his role as Commander-in-Chief. to establish military commissions Judge Robertson disagreed: “If the President does have inherent power in this arca it is quite limited." He also noted that "Congress has the power to amend those limits and could do so tomorrow”. Amnesty International emphasizes that any legislative proposals must ensure compliance with international law and standards. In this regard, Amnesty International notes the following stated by the UN Special Rapporteur on the independence of judges and lawyers Henry v Jamaica, (230/1987). 1 November 1991. Report of the HRC, UN Doc A/47/40 (1992). p. 218. para 8.4 S For further information, see (S4- 4 deepening stain on US justice. Al Index: AMR 51/130/2004, August 2004, hip web amnesty org library Index FNGAVR511302004 ** Human Rights Committee. General Comment No. 31 on Article 2 of the Covenant: The Nature of the General Legal Obagation Imposed on States Parties to the Covenant. UN Doc. COPRO 74ORP.4 Rev 6, 21 April 2004, para. 11 For example, Judge Robertson accepted the adequacy of the review panel appointed by the EXECUTIVE TO TOVIew convictions and sentences. USA Guantánamo and beyond - The continuing pursuit of unchecked executive power "Using military or emergency courts to try civilians in the name of national security, a state of emergency or counter-terrorism poses a serious problem. This regrettably common practice runs counter to all international and regional standards and established case law. The Human Rights Committee has time and again asserted that military courts may only hear cases involving military personnel charged with crimes or offences relating to military matters. The Inter-American Court of Human Rights has established a wealth of case law in this regard and has also considered that bringing civilians before military courts is a violation of due process and the principle of the lawful judge'. The European Court of Human Rights has also asserted this principle: although military courts are not competent to try civilians in the European system, it has had to pronounce on the action of national security courts composed of civilian and military judges. The African Commission on Human and Peoples' Rights has held that the trial of civilians by military courts is contrary to articles 6 and 7 of the African Charter and the Basic Principles on the Independence of the Judiciary”? 271 Principle 5 of the UN Basic Principles on the Independence of the Judiciary states: Clearly, the US military commissions violate this principle, having been expressly devised under President Bush's 13 November 2001 Military Order to bypass "the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts", 272 It is also clear that, for whatever reason, the US administration is intending to charge and try only a small number of the foreign detainees it has in its custody outside the sovereign territory of the USA. It cannot be argued that transferring those few detainees to the jurisdiction of the ordinary court system would place any insurmountable burdens on that system. Morcover, such a transfer to an independent and transparent system would send the message that the USA is serious about justice and human rights. The military commissions, in contrast, will be widely seen as the secretive, improvised, outdated and internationally illegal response that they are. Such show trials will undermine the very values that the USA claims to be in a struggle to uphold. 273 It was hardly a vote of confidence in this system, when the executive's chief military commission official, the Appointing Authority, said just before the pre-trial proceedings for the first four detainee charged, "this is the first time we've done commissions in 60 years, and we'll have to wait and see what happens as to how it goes and how smoothly it goes"." Amnesty International was allowed to send an observer to these hearings in 2004. Her observations only further confirmed the organization's worst fears that this is a system unable to deliver a fair trial, and entirely a creature of the executive.27* In the pre-trial commission hearings for David Hicks, for example, the commission rejected the defence counsel`s attempt 271 273 UN Doc. E/CN.4/2004/60, 31 December 2003, para. 60. 272 Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, Section 1(f). John Altenburg, Jr.. Appointing Authority for the Office of Military Commissions. Defense Department Bricfing on Military Commission Hearings. 17 August 2004. 774 USA: Guantánamo: Military commissions Amnesty International observer's notes from http://web.amuesty.org/library/index/ENGAMR511532004. |