(Washington, DC) - Under President Bush's November 13th Military Order on military commissions, any foreign national designated by the President as a suspected terrorist or as aiding terrorists could potentially be detained, tried, convicted and even executed without a public trial, without adequate access to counsel, without the presumption of innocence or even proof of guilt beyond reasonable doubt, and without the right to appeal.
The U.S. State Department has repeatedly criticized the use of military tribunals to try civilians and other similar limitations on due process around the world. Indeed, its annual Country Reports on Human Rights Practices evaluate each country on the extent to which it guarantees the right to a "fair public trial" - which it defines to include many of the due process rights omitted by the President's Military Order. The Order may make future U.S. efforts to promote such standards appear hypocritical. Indeed, even if its most egregious failings are corrected in subsequent regulations, the text of the Order may become a model for governments seeking a legal cloak for political repression.
Several countries about which the State Department has expressed concern include:
The State Department described the Burmese court system, in its most recent Country Reports as "seriously flawed, particularly in the handling of political cases," where trials are not open to the public and military authorities dictate the verdicts. SLORC Order 7/90 allows commanders to try Buddhist clergy members before military courts for "activities inconsistent with and detrimental to Buddhism." The Burmese government justifies all such trials by citing threats to national unity and security.
The State Department has documented numerous means by which Chinese officials undermine due process. The United States has criticized China's system in part because defendants do not enjoy a presumption of innocence or its corollary rights, such as habeas corpus, standard of guilt, or the burden of proof necessary to ensure it. Trials involving national security, espionage or state secrets are conducted in secret. The government has broad authority to define crimes that endanger "state security" or involve state secrets. Police can monitor client-counsel meetings and defendants are not always allowed to confront their accusers. The most recent Country Reports state that, "the lack of due process is particularly egregious in death penalty cases." The lack of procedural safeguards has enabled China to engage in crackdowns on dissent that the United States has condemned, including a crackdown in predominantly Muslim areas that has "failed to distinguish between those involved with illegal religious activities and those involved in ethnic separatism or terrorist activities," as the State Department's annual report on religious freedom concluded in 2000.
Colombia's use of faceless prosecutors, judges, witnesses and attorneys in cases of narcotics trafficking, terrorism, kidnapping, subversion and extortion during the early and mid-1990s has been criticized in the Country Reports. The 1996 Report noted that, "it was still difficult for defense attorneys to impeach or cross-examine anonymous witnesses, and often they did not have unimpeded access to the State's evidence."
The most recent Country Reports criticized the manner in which military tribunals were used to try a wide range of offenses in Egypt, from non-violent dissent to acts of terrorism. The judges in these trials are military officers appointed by the Ministry of Defense. Verdicts may not be appealed, and are subject to review only by a panel of other military judges and then confirmed by the President. In 2000, two members of the "Islamic Gihad group in Egypt" who had been sentenced by military courts to death in absentia were executed. Civilians are often referred to military courts, some accused of membership in organizations that do not advocate or practice violence, but which are illegal. The 2000 Country Report stated that "this use of military courts . . . has deprived hundreds of civilian defendants of their constitutional right to be tried by a civilian judge." It added that "military courts do not ensure civilian defendants due process before an independent tribunal" and that the military officers who serve as judges in these courts "are neither as independent nor as qualified as civilian judges in applying the civilian Penal Code."
The State Department has noted that in Kyrgyzstan, "the government frequently used the judicial process to eliminate key political opposition figures." Opposition leaders have been tried in closed military courts - although a civilian may be tried in military courts only if a codefendant is a member of the military. The decision of civilian courts to render an indeterminate verdict back to the Procurator for further investigation may not be appealed. The Country Report also stated that, "in practice, there was considerable evidence of executive branch interference in verdicts involving prominent political opposition figures."
Malaysia's 1975 Essential (Security Cases) Regulations restrict due process by allowing the accused to be held for unspecified periods of time before being charged and by lowering the standards used for accepting self- incriminating statements as evidence. These regulations usually apply only to firearms cases but may be applied to other criminal cases if the government decides that national security considerations are involved. The most recent Country Reports adds that "even when the Essential Regulations are not invoked, defense lawyers lack legal protections against interference." Many lawyers are charged with contempt of court after filing motions on behalf of their clients, particularly if they bring about allegations of prosecutorial misconduct.
The State Department condemned Nigeria following the conviction and execution of author and minority rights activist Ken Saro-Wiwa and eight other activists before a specially constituted tribunal in which a military officer was one of three judges. The US ambassador was recalled for consultations and sanctions on the Nigerian regime were extended. Special tribunals in Nigeria, including military tribunals, became commonplace during the periods of military rule from 1966 to 1979 and 1983 to 1999, and had jurisdiction over offenses such as civil disturbances, armed robbery, some categories of corruption, coup-plotting, and illegal sale of petroleum. Many military decrees also included "ouster clauses" providing that government decisions could not be questioned in a court of law. In the Country Reports for 1996, the State Department noted that, in Nigeria, "in practice tribunal proceedings often deny defendants due process." In a statement before the House International Relations Committee in 1998, Assistant Secretary of State for African Affairs Susan Rice stated that, "military tribunals denied due process to political and other prisoners" in Nigeria.
Peru's use of military tribunals to try civilians accused of treason and terrorism has been repeatedly criticized by the State Department. The most recent Country Reports noted that "proceedings in these military courts - and those for terrorism in civilian courts - do not meet internationally accepted standards of openness, fairness, and due process." Treason trials may be held in secret if the courts deem it necessary, and defense attorneys are prohibited from accessing the State's evidence files or questioning military or police witnesses.
U.S. citizen Lori Berenson was tried and convicted of the terrorism-related crime of treason before a military tribunal. The State Department noted that her trial lacked sufficient guarantees of due process, and State Department Spokesman Phillip Reeker in a June 2001 briefing stated that her military trial had "egregious flaws." In 1996, Spokesman Glyn Davies said the United States "deeply regret[ed] that Ms. Berenson was not tried in an open civilian court with full rights of legal defense, in accordance with international juridical norms" and called for the case to be retried in an "open judicial proceeding in a civilian court" -- a point repeatedly reinforced by State and White House officials to their counterparts in Peru.
The arrests and detentions of various government critics, including academics, human rights activists and journalists have been documented in the State Department's Country Reports. Espionage cases in particular have been subject to frequent abuses. In 1999, Igor Sutyagin, a researcher for the USA Canada Institute was detained on espionage charges. The Russian Federal Security Service (FSB) has claimed that Mr. Sutyagin violated a secret Ministry of Defense decree on secrecy. Evidence in his case was secret, and Mr. Sutyagin remains in detention. Other individuals who have been charged with treason include Aleksandr Nikitin, a retired Russian Navy captain and environmentalist. According the most recent Country Reports, "Nikitin's case was characterized by serious violations of due process." The Country Report also expressed concern about the trials of several non-Russians charged with espionage. As in the previous cases, the attorneys had trouble obtaining the details of the charges.
U.S. citizen Edmond Pope, a businessman, was arrested by FSB agents in April 2000, convicted of espionage and sentenced to 20 years in prison for his efforts to purchase Russian technology that reportedly was publicly available, and not classified, as was claimed. His trial took place behind closed doors - a fact protested by the United States.
The United States has consistently condemned the government of Sudan for denying defendants the right to a fair public trial. As the 2000 Country Report on Sudan noted: "Military trials, which sometimes are secret and brief, do not provide procedural safeguards, sometimes have taken place with no advocate or counsel permitted, and do not provide an effective appeal from a death sentence." The State Department has also expressed concern about special three-person security courts in Sudan, on which both military and civilian judges sit, and which deal with violations of constitutional decrees, emergency regulations, some sections of the Penal Code, as well as drug and currency offenses. These courts severely restrict the right of attorneys to effectively defend their clients, although they do permit defendants to appeal their sentences.
The State Department has expressed concerns about Turkey's State Security Courts (SSC), which have been used to prosecute leaders of armed political Islamic movement, those associated with armed Kurdish movements, as well as non-violent critics of military or government policies. SSC's try defendants accused of terrorism, drug smuggling, membership in illegal organizations, and advocating or disseminating ideas prohibited by law, including those "damaging the indivisible unity of the State." SSC's may hold closed hearings, and also allow testimony obtained during police interrogation in the absence of counsel to be admitted. The verdicts delivered by the SSC may be appealed to only a special department of the Court of Cassation that handles crimes against state security. Military courts may try civilians accused of "impugning the honor of the armed forces" or "undermining compliance with the draft."
Other countries have recently proposed legislation that limit due process. The "Anti-Terrorism, Crime and Security Bill" introduced by the Home Office in Great Britain on November 13 allows foreigners to be jailed without a hearing if police or security officials identify them as potential terrorists. If foreign nationals suspected of terrorism-related activities cannot be removed to their own or a third country due to either administrative problems or provisions of the European Convention on Human Rights that prohibit the removal of those who may be subject to torture, they may be indefinitely detained. On November 19, David Blunkett, Britain's Home Secretary, defended this law by arguing that it was not as severe as the Military Order recently signed by President Bush.