AMERICAN CIVIL LIBERTIES UNION CONDUCT UNBECOMING: Introduction Pitfalls in the President's ore than a year ago, a major American newspaper detailed how a series of policy directives by the Bush administration had effectively created a "parallel" system of justice in America, in which terrorist suspects could "be investigated, jailed, interrogated, tried and punished without legal protections guaranteed by the ordinary system." The ACLU believes that this "parallel" system of justice fails to provide the safeguards necessary to ensure due process. These White House initiatives include the "enemy combatant" designation for American citizens, the holding of suspected terrorists without charge as material witnesses, the mass detentions at Guantánamo Bay and a system of military tribunals authorized unilaterally by the president. All of these initiatives share one discouraging trait: an unwillingness by the Bush administration to trust basic checks and balances on government power, like those that the American legal system demands to protect the innocent from false arrest, prosecution, conviction or execution. Now, with an announcement by the Defense Department that it will begin trying detainees in these newly created military commissions, this inferior legal system seems set to start operating in earnest. Pursuant to a Military Order signed by the president shortly after the tragic attacks of Sept. 11, 2001, the Department of Defense has formalized the White House plan to try certain non-citizens alleged to be enemy combatants in military commissions, where they will not enjoy the basic due process protections accorded under the Uniform Code of Military Justice or required by international law. The military, with the president as its commander in chief, will have sole authority to appoint the judges, prosecutors and defense counsels for these commissions. Indeed, the Department of Defense appears to be the only government body that can hear any appeal – civilian courts wouldn't even enter the equation. Attorney-client privilege is weakened; evidence even evidence of innocence could be withheld from the proceedings under the vaguely defined guise of "national security" and the courts are so unusual that the basic rules of procedure could be changed midstream during the tribunal. These military commissions have not been congressionally reviewed or authorized. Thus, the rules governing their use could be changed at the whim of the president. President Bush, with a stroke of his pen, could begin to use the commissions to try non-citizens on American soil for crimes unrelated to 9/11. The president could even decide - as did President Roosevelt in World War II to subject American citizens to CONDUCT UNBECOMING these proceedings. It is not far-fetched to imagine that U.S. citizens Jose Padilla and Yasser Esam Hamdi, who have already been designated as enemy combatants, could be tried by such commissions. What is at stake is the integrity of the very notion of due process, the presumption of innocence and the promise of a fair trial. The White House and only the White House created this inferior system of trial and punishment. The military can only be expected to comport itself with the honor and integrity that comes with the uniform. The procedural pitfalls in these commissions, though, are just too numerous to expect that any of those charged with crimes could get a fair trial. Excessive power will inevitably be used excessively. We must provide appropriate bulwarks against abuse. involvement in terrorism. The Military Order produced a firestorm of criticism from across the political spectrum. Conservative columnist William Safire said that the order would establish "Soviet-style" tribunals because it failed to guarantee many basic rights that are protected both under the American Constitution and international law. When the final rules were approved in July 2003, it became clear that the criticism was justified. According to the rules, the Defense Department chooses the military officers that serve as adjudicator of fact and law, and chooses the military defense counsel as well. The Defense Department chooses the people who will hear any appeal. The government can listen in on the conversations the accused has with his attorney. The prosecution can use secret evidence against the accused, and the accused has no way to compel the government to produce evidence or witnesses showing his innocence. The government has the power to change the rules in the middle of the trial, including the elements of the offense of which he is accused so it would not have to prove things that it could not prove. At the end of the trial, if acquitted, the accused could still be detained indefinitely. If convicted, he could be put to death with no outside review whatsoever. Under no stretch of the imagination can such proceedings be considered "full and fair trials," as the president promised in his Military Order. No matter how the Defense Department tries to dress them up, these military commissions cannot provide justice in the eyes of the world. Six people have already been designated to face these unfair tribunals in Guantánamo Bay, Cuba, and two have now been charged. Hundreds of other Guantánamo detainees could also face them. They could also be used to try other suspects, including those arrested in the United States. The commissions violate fundamental fair trial guarantees: Trials will lack independence and there is no appeal outside the chain of command. Political appointees at at the the Defense Department will have control over who sits on a military commission and appoint the chief prosecutor and chief defense counsel. Likewise, these appointees will determine who sits on the review panel of military officers that provides the only appeal. The decisions of the review panel are only recommendations and in some cases can be overturned by the secretary of defense or the president. Judicial review appears to be foreclosed, whether by direct appeal or by petition for a writ of habeas corpus. Prosecutors can keep evidence even evidence of innocence - from the accused. Secret evidence rules allow the prosecution to submit evidence to the commission without revealing that evidence to the accused. Defense lawyers may be given only a summary of evidence, and, in some cases, the summary may be provided only to the military lawyer. Evidence that is not used at trial - even if it may establish the defendant's innocence - does not have to be shared with the defense at all. Evidence may be kept secret on "national security" grounds even if it does not involve any classified information. Defendants have no right to compel the attendance of witnesses. Defendants do not have the power to require the commission to subpoena witnesses or documents, even if such evidence is crucial to the defendant's case. Trials can take place in secret and attorneys are barred from speaking to the press without permission. Any portion of AMERICAN CIVIL LIBERTIES UNION a trial or all of it can be closed to the press for "national security" reasons, whether or not any classified information would be disclosed during the session. Defense attorneys are required to submit to Defense Department censorship of any comments to the press about their cases. ⚫ There are severe limits on the accused's right to an attorney. Attorney-client communications can be monitored, and defense attorneys can be forced to reveal confidences for "national security" reasons. Defense lawyers are barred from brokering common defense arrangements, which are often critical to trial strategy, among defendants. The chief defense counsel, who oversees military defense lawyers, has no obligation to keep information in the hands of the defense confidential. Trial rules - including the definitions of crimes - can be changed at any time, even during a trial, by military officials. The rules for the trial, including those for monitoring attorney-client conversations and determining the elements the prosecution must provide to establish guilt for various offenses, are not binding on the commission and can be changed at any time. Defendants have no right to a speedy trial - or even a trial at all - but can be held indefinitely without charge. There is no time limit for bringing any detainee held as an alleged enemy combatant before a commission to face charges, or before any other military or judicial forum that could resolve factual or legal disputes about whether the detainee has done anything to warrant further imprisonment. Guilty verdicts in all but capital cases can be imposed even if one third of the military officers on the commission believe the defendant is innocent. CONDUCT UNBECOMING Defendants can continue to be detained even if acquitted of all charges. Even an acquittal on all charges does not obligate the government to release a detainee, so long as the "war on terrorism" is ongoing. Commission rules are so broad that they Why the Guantánamo Military No independence, no review, and no outside appeal. The procedures outlined for military commissions fail to provide for an impartial and independent tribunal, nor are the military commissions subject to any meaningful outside check on their authority. The military commissions are an entirely closed system, subject to the control of the president or secretary of defense, with no appeal allowed to any civilian court. The appointing authority, who has now been appointed by the secretary of defense, will have ultimate control over the entire military commission proceeding, including the appointing of commissioners, the review panel and the ultimate disposition of the case." While Secretary Rumsfeld has designated Maj. Gen. John D. Altenburg, Jr., a distinguished retired military lawyer, as the appointing authority, putting this degree of power into the hands of a political appointee simply does not offer any guarantee of impartiality or independence and violates basic principles of American justice and international law. The procedure violates fundamental due process protected by the Fifth Amendment, as well as the specific requirement of the Third Geneva Convention (article 106) that defendants tried in military tribunals must have access to appeals "in the same manner as the members of the Armed Forces of the Detaining Power."" The review procedures do not offer a real appeal. The appointing authority controls selection of review panels, which may be appointed for specific cases, and the secretary of defense has the power, in some cases, to set aside the review panel's recommendations." These provisions render illusory the order's guarantee of an appeal, a requirement under American justice and international law. There is no appeal to any body even an administrative panel outside the military command structure. The sentence of a military commission becomes final when it is affirmed by the secretary of defense. Punishment - which could include execution - can be carried out with no outside review whatsoever. Judicial review appears to be specifically foreclosed by the rules, whether by direct appeal or by petition for a writ of habeas corpus. |