British Prime Minister Tony Blair should insist in his meeting next week with U.S. President George W. Bush that no detainee at Guantánamo Bay be tried in proceedings that fail to meet international standards of due process, Human Rights Watch said today.
“The detainees have been held far too long without any kind of legal process,” said Wendy Patten, U.S. advocacy director at Human Rights Watch. “But the military commissions proposed by the Bush administration will not provide a fair trial.”
Following the announcement in July that two Britons were among the first six detainees President Bush declared eligible for trial by military commission, the British government raised serious concerns about due process. The U.S. government agreed to suspend proceedings against the two British nationals, Moazzam Begg and Feroz Abbasi, until these concerns were resolved. The U.S. and Australian governments are involved in similar talks regarding an Australian national, David Hicks, who is also among the first six detainees slated for possible trial by military commission.
The talks thus far have failed to yield progress on the most serious deficiencies in the structure of the military commissions. The British government has obtained little beyond assurances that the two Britons will not be subject to the death penalty and that the U.S. government will not eavesdrop on their conversations with their lawyers. Blair has indicated that the two Britons may be repatriated if the two governments fail to reach agreement on the British government’s remaining concerns. While repatriation would avoid trial by military commission for these two men, it would do nothing to address the fundamental concerns about due process raised by the proposed military commissions before which the remaining Guantánamo detainees may be tried.
Human Rights Watch insists that no one be tried by the proposed military commissions unless the rules are changed to ensure fair trials. Among the principal due process problems are:
- Lack of independent appeal – Detainees tried before military commissions will not be allowed access to independent civilian courts for review of any convictions and sentences. Trial results will be reviewed by military review panels, then by U.S. Secretary of Defense Donald Rumsfeld and, ultimately, by President Bush. Review of trial decisions, no matter how erroneous or arbitrary, will remain wholly within the military chain of command. By contrast, U.S. service members tried by courts martial may appeal to the U.S. Court of Appeals for the Armed Forces and then to the U.S. Supreme Court. The failure to provide this same right of appeal to those detainees who should have been classified as prisoners of war is a violation of the Third Geneva Convention.
- Restrictions on an effective defense – The military commissions’ rules place numerous restrictions on the ability of defense lawyers to mount an effective defense. Among the most important restrictions are: infringing upon the defendant’s right to counsel of choice by requiring him or her to accept a military defense lawyer as part of his or her defense team; monitoring attorney-client conversations; failing to guarantee access by a civilian defense lawyer to all of the evidence against the defendant or to all of the proceedings in the case; and prohibiting defense counsel from talking to the press or the public about the case without prior permission from military officials.
- Improperly subjecting civilians to military jurisdiction – The military commissions will be permitted to try persons who were never combatants and whose connection to armed conflict may be tenuous at best. For example, a non-U.S. citizen living in the United States who has financially contributed to al-Qaeda could be prosecuted before a military commission for “aiding and abetting” the enemy. With U.S. courts fully functioning, there is no justification for subjecting civilians to military trial and violating their right to a hearing by an independent and impartial tribunal.
“Trials of the Guantánamo detainees must be scrupulously fair, both to protect the rights of the accused and to ensure the legitimacy of any verdict in the eyes of the world,” said Patten.
For nearly two years, the United States has held detainees at its naval base in Guantánamo Bay, Cuba. Nine Britons are among the approximately 660 persons detained by the United States at Guantánamo. The Bush administration claims the detainees are all enemy combatants who are not entitled to prisoner of war status, even though the U.S. government has refused to afford them individual hearings to determine their status, as required by the Third Geneva Convention. By contrast, the U.S. government conducted over one thousand such hearings during the 1991 Gulf War and has conducted numerous such hearings in Iraq since the recent armed conflict. The Bush administration continues to oppose judicial review of the detentions at Guantánamo. On November 10, the U.S. Supreme Court agreed to consider whether U.S. courts should be open to hear claims of unlawful detention by Guantánamo detainees.
