Military Commission Trials to Resume
March 8, 2011
Is added review an improvement? Yes. Does it make US detention policies lawful? No. Signing an executive order does not suddenly make it legal to lock people up and hold them forever without proving they have committed a crime.
Andrea Prasow, senior counterterrorism counsel

(Washington, DC) - A new Obama administration executive order pertaining to Guantanamo detainees held under purported "law-of-war" detention provides an additional layer of review not previously available. However, the order also continues the practice of indefinite detention without trial, a practice that violates international law, Human Rights Watch said today.

The executive order, issued on March 7, 2011, allows detainees the administration claims are too dangerous to release, but is unwilling to prosecute, the ability to challenge their detention before a new Periodic Review Board. Detainees covered by the order will be subject to an initial review within one year under a standard of whether they pose a threat to the security of the US.

Detainees will be able to submit documentary evidence every six months, but will only go before the full panel once every three years. They will be assigned a "representative" by the military but are able to be represented by counsel of their choice at no cost to the government.

While these new provisions are an improvement over the current system, which does not have such a review, the use by the US of indefinite detention without trial still fails to meet the most basic elements of due process under international law, Human Rights Watch said. Importantly however, the order only applies to detainees currently held at Guantanamo and not to anyone who might be captured in the future, a significant limitation given calls for sweeping detention authority by critics of the administration.

"Is added review an improvement? Yes. Does it make US detention policies lawful? No,"

said Andrea Prasow, senior counterterrorism counsel at Human Rights Watch. "Signing an executive order does not suddenly make it legal to lock people up and hold them forever without proving they have committed a crime."

Currently, 172 detainees are imprisoned at Guantanamo. The Obama administration has slated 47 for indefinite detention without trial and another 36 for prosecution, and has cleared the remaining 89 for transfer. The executive order is limited to the 47 detainees previously identified for indefinite detention, as well as any detainee identified for prosecution but who does not yet have charges pending. By limiting the executive order in this manner - and excluding future terrorism suspects from the order - the administration is indicating a reluctance to expand indefinite detention beyond the cases it inherited from the Bush administration.

"Authorizing indefinite detention for future terrorism suspects would have created a real danger of a permanent regime of indefinite detention for anyone the government decides is dangerous," Prasow said. "But by limiting the order to a specified number of current detainees, President Obama has committed his administration to apply the practice only to the mishandled cases left by his predecessor."

Included in the order was an announcement of the Obama administration's decision to seek ratification of Additional Protocol II to the Geneva Conventions of 1949 dealing with non-international armed conflicts, which Human Rights Watch strongly supports. While Human Rights Watch has long urged the US government to also ratify Additional Protocol I on international armed conflicts, the administration's recognition of article 75 on fundamental guarantees as a "legal obligation" is a welcome step.

Along with the executive order, the administration also announced that it would resume use of military commission proceedings at Guantanamo. Use of the commissions for new cases were put on hold shortly after Obama took office pending a comprehensive review, now complete, by the administration of the status of each Guantanamo detainee. The executive order also affirmed the Obama administration's commitment to prosecuting some cases in federal civilian courts.

While the reaffirmation of the administration's commitment to civilian prosecution for terrorism suspects is a welcome step, Human Rights Watch strongly opposes the continued use of military commission proceedings. US federal courts remain the only legitimate and viable means of prosecuting terrorism suspects. The military commissions at Guantanamo have been marred by procedural problems, the use of evidence obtained by coercion, inconsistent application of varying rules of evidence, poor translation, and lack of public access. Any verdict obtained in them will be vulnerable to appellate review and will not provide any finality of justice.

Further, compared to federal courts, military commissions have moved very slowly. During the nine years since the military commissions were first announced, military prosecutors have brought only six cases to completion, four of them by plea bargain. Federal courts, in contrast, have prosecuted hundreds of terrorism-related offenses during the same period, convicting, among others, 9/11 conspirator Zacarias Moussaoui and "shoe bomber" Richard Reid.

"Any trial in the military commission system carries the stigma of Guantanamo and will be tainted by a lack of due process," Prasow said. "A verdict in the federal court system, in contrast, would be recognized internationally as legitimate."

Although at the end of 2010 Congress placed restrictions on the ability of the administration to transfer detainees to the US, even for prosecution, and to release them to third or home countries, those restrictions only apply to the use of Department of Defense funds and they expire at the end of this year. The administration still has the ability to use Department of Justice or Homeland Security funds for the same purpose.

"President Obama should promptly use available funds to move forward with prosecuting the long-delayed 9/11and other terrorism cases in federal court," Prasow said. "He needs to bring those accused to justice appropriately rather than keeping them detained without charge under his new order."