New Rules Won’t Ensure Fair Trials
(Washington, DC) - The Obama administration's decision to revive military commissions for detainees at Guantanamo will prolong the injustice of Guantanamo, Human Rights Watch said today. The commissions will provide substandard justice, and will likely be beset by litigation and delays.
"The military commissions system is flawed beyond repair," said Kenneth Roth, executive director of Human Rights Watch. "By resurrecting this failed Bush administration idea, President Obama is backtracking dangerously on his reform agenda."
As a presidential candidate, Obama rightly called the military commissions at Guantanamo "an enormous failure." On his second day in office, he suspended the commissions for 120 days and announced plans to close the detention center at Guantanamo within a year.
Today, the administration announced that it would resume trials of Guantanamo detainees by military commissions under new rules that would offer defendants greater legal protections. According to the administration, the new rules would prohibit the introduction of evidence obtained through coercion, tighten the use of hearsay evidence than under the existing military commission rules, and allow detainees greater choice in selecting defense lawyers.
Although the proposed changes to the commissions would be improvements, they do not address fundamental concerns about the flawed nature of such tribunals, Human Rights Watch said. The very purpose of the commissions was to permit trials that lacked the full due process protections available to defendants in federal courts.
Some of the most egregious problems of the military commissions are the result of starting a system from scratch. Because the rules of procedure were ad hoc and untested, it was difficult to prepare a defense. For instance, the system in place to provide discovery to defendants left defense counsel without access to critical - and in some cases possibly exculpatory - evidence. Many issues became subject to myriad legal challenges, resulting in long and unnecessary delays.
An inherent problem with the commissions is their lack of independence. Being part of the larger military structure, they are vulnerable to improper executive branch influence and control.
Another issue of concern is the commissions' continued reliance on hearsay evidence. Although some defenders of the commissions have pointed to international tribunals' relatively permissive rules on hearsay, a crucial distinction is that the triers of fact in such tribunals are judges - who know to properly discount the weight of hearsay - not laypersons, who do not. Human Rights Watch knows of no criminal justice system other than Rwanda's highly discredited gacaca courts in which hearsay is admitted before a jury of non-lawyers, as would be the case with the revised military commissions.
The proposed rules on hearsay open the door to obtaining convictions (and possibly death sentences) based on the testimony of dubious witnesses, people whom the government will not need to produce in court, because their testimony can be conveyed via hearsay.
"The revived military commissions will be deeply tainted by the moral and political baggage of the old commissions," Roth said. "The unhappy history of these commissions virtually guarantees that in future commissions the unfairness of the proceedings will distract from the gravity of the crimes."
Human Rights Watch said that whatever marginal benefits the administration might see in obtaining easier convictions by using a substandard trial process will be vastly outweighed by the negative consequences of relying on the commissions. The United States can expect to face continuing international condemnation for restricting basic due process rights, and for failing to repudiate the legacy of Guantanamo. It will also discourage the international cooperation needed to successfully break up terrorist plots and apprehend terrorist suspects.
Human Rights Watch has long called on the US government to transfer the Guantanamo cases to US federal courts, where procedures that have withstood the test of time and litigation. Although critics assert that trials in US courts would jeopardize national security by exposing sensitive intelligence information, the courts are governed by carefully crafted rules that protect sensitive information from becoming public. Sheikh Omar Abdel-Rahman, implicated in the 1993 World Trade Center bombing, and Zacarias Moussaoui, implicated in the 9/11 attacks, were both tried and convicted in US federal courts.
"There is no good reason why the Guantanamo cases shouldn't be tried in federal court," Roth said. "In the more than seven years since the military commissions were announced, only three suspects have been prosecuted. The federal courts, by contrast, have tried more than 145 terrorism cases during the same period."