Legislation Lacks Reforms Obama Had Sought
October 28, 2009
The new law can’t salvage these discredited commissions. Rather than risk endless litigation over military commissions rules, the Obama administration should prosecute detainees in federal courts, whose record of trying terrorism cases is solid.
Joanne Mariner, terrorism and counterterrorism director

(Washington, DC) - The military commissions legislation that President Barack Obama signed into law today does not remedy the commissions' inherent flaws, Human Rights Watch said today.

The Military Commissions Act of 2009, which was included in the National Defense Authorization Act (NDAA), significantly improves upon the Bush administration's system of military commissions, but still departs in fundamental ways from the fair trial procedures used in US federal courts and courts martial. Human Rights Watch warned that even with the new changes, the military commissions will be viewed globally as illegitimate and harm international counterterrorism cooperation.

"The new law can't salvage these discredited commissions," said Joanne Mariner, terrorism and counterterrorism director at Human Rights Watch. "Rather than risk endless litigation over military commissions rules, the Obama administration should prosecute detainees in federal courts, whose record of trying terrorism cases is solid."

The new legislation revises the procedures governing the use of military commissions to try "unprivileged enemy belligerents" (labeled "unlawful enemy combatants" by the Bush administration). The commissions' jurisdiction extends beyond the traditional laws of war to cover suspected terrorists picked up outside of any armed conflict.

The new law limits the admission of coerced and hearsay evidence, and grants greater resources to defense counsel. However, the legislation did not contain many of the improvements the Obama administration had originally sought and fails to address fundamental due process concerns.

Among the most troubling aspects of the new military commissions legislation is its inclusion of offenses that are not considered violations of the laws of war. Although the administration had insisted that "providing material support for terrorism" was not a law of war violation, the legislation allows military commissions to try such cases.

"Providing material support for terrorism is not a war crime," Mariner said. "It is a criminal offense that should be tried in US federal courts."

Another troubling issue is the lack of a sunset clause to set a time limit on how long the military commissions could be used, something the administration has specifically requested. The administration had signaled that it planned to limit the use of military commissions to existing detainees at Guantanamo, not to terrorism suspects in the future. By failing to include a sunset provision, Congress may be suggesting that it views the military commissions as more permanent.

Human Rights Watch also expressed concern over Congress's refusal to exempt children from prosecution by military commissions. In recognition that children are less criminally culpable than adults, and that emphasis on adjudicating children should be on rehabilitation rather than punishment, no international tribunal since Nuremberg has prosecuted a child for alleged war crimes and the United Nations has condemned the practice.

Finally, Human Rights Watch said that the fact that only non-US citizens were subject to trial in military commissions raised serious concerns about fairness and discrimination.

"The overt discrimination codified in the new military commissions law will offend US allies," Mariner said. "If the commissions are too unfair to be used on US citizens, they're too unfair to be used on anyone."

When Obama first announced that his administration planned to revise the military commissions, he said that wherever feasible, detainees would be tried in federal courts and that only those accused of violating the laws of war would be tried by military commissions.

Unlike the federal courts, which enjoy constitutional protection against executive pressure, the commissions lack independence. The previous commissions were highly susceptible to improper political influence, leading several military prosecutors to resign in protest.

The very purpose of the military commissions is to permit trials that lack the full due process protections available to defendants in federal courts, Human Rights Watch said. Tinkering with the procedures of tribunals created from scratch forfeits the benefits of using long-established civilian criminal courts whose procedures and protections have been tried and tested via years of litigation.

"Any conviction obtained in a commission will be an easy target for reversal on appeal," Mariner said. "So the smart approach for the administration would be to stick with the federal courts."