The August hearings highlighted not just the problems of the commission rules, but the problems caused by the absence of necessary procedural rules.
Donald H. Rumsfeld
Secretary of Defense
Department of Defense
1000 Defense Pentagon
Washington, DC 20301-1000
September 16, 2004
Dear Secretary Rumsfeld,
We are writing to urge that the U.S. government end the use of military commissions at Guantánamo Bay and instead bring prosecutions before federal courts or courts-martial. The commission hearings convened in late August highlighted previously recognized flaws in the commission rules and regulations and showed the commission process to be incompatible with the basic right to a fair trial. The commissions lack competence and impartiality, and the defendants will not be able to fairly examine the evidence against them. The unfortunate result of the hearings was to place the international spotlight on the unfairness of American justice rather than on the alleged crimes of the accused.
Human Rights Watch supports the prosecution of persons implicated in war crimes, crimes against humanity, and acts of international terrorism by tribunals that meet international standards for fair trials. We were pleased to send an observer to attend the hearings. However, the hearings only underlined concerns previously expressed by ourselves and others that the commissions fall far short of international fair trial standards.
Human Rights Watch has on previous occasions raised fundamental criticisms of the military commissions on the basis of the various military orders and instructions establishing the tribunals and setting out their procedures. For instance, the commissions deprive defendants of independent judicial oversight by a civilian court, impose severe restrictions on the right to conduct a defense, and permit military trials for offenses committed outside of an armed conflict.
The August hearings highlighted not just the problems of the commission rules, but the problems caused by the absence of necessary procedural rules. This letter addresses only those problems that became evident during the hearings.
Disregard for Existing Trial Procedures
Our observer at Guantánamo Bay was impressed by the professionalism shown by the commission’s presiding officer in addressing the legal questions brought to his attention. However, our observer—and practically all others present—found the commission hearings to be needlessly confused. We recognize that this was only the first session, but the problems that arose were not mere kinks in the system. Instead, the presiding officer and the commission panel faced the daunting task of having to create a legal system virtually from scratch, without the benefit of existing U.S. military or federal codes, regulations or case law.
There is no need for the commissions to struggle with the most basic questions of procedural and substantive law. The U.S. federal and military justice systems are more than adequate for trying those charged with war crimes, crimes against humanity and terrorism. Historically, U.S. military commissions have adopted the rules of procedure of courts-martial as they existed at the time. The Uniform Code of Military Justice (UCMJ) in article 36 specifically provides that military commission rules “may not be contrary to or inconsistent with [the UCMJ].” While the November 13, 2001 order by President Bush declares that article 36 is inapplicable because it is “not practical to apply in military commissions,” the first week of the military commissions revealed just the opposite: it is utterly impractical to resurrect World War II-era military commissions that are lacking in the most basic procedures, and instead force the participants to spend time grappling with questions long since resolved in the U.S. military and criminal justice systems. Many of the procedural problems of the commissions could have been avoided simply by following existing law and criminal procedures. The United States has successfully tried persons charged with international crimes and terrorism without jeopardizing its security interests or sacrificing the basic principle that all criminal defendants are entitled to fair trials.
Competence, Independence and Impartiality of Commissions
The commission hearings raised serious concerns whether the proposed panel members can conduct trials in accordance with fair trial standards. International law, notably the International Covenant on Civil and Political Rights (ICCPR), which the U.S. ratified in 1992, states that in determining any criminal charge, everyone shall be entitled to a fair and public hearing “by a competent, independent and impartial tribunal established by law” (art. 14(1)). The international laws of armed conflict, notably the Geneva Conventions, require that trials meet international justice standards (e.g. common article 3(1)(d)). While military commissions applying battlefield justice have historically applied minimal due process protections, the great temporal and physical distance from the Afghanistan battlezone vitiates any excuse for lesser standards.
As you are aware, the presiding officer is the only lawyer on the commission panel. During the voir dire (commission selection), it became clear that most of the other panel members knew little or nothing about domestic or international law. While this is not an issue for traditional jurors, who are required only to determine questions of fact after being instructed on the law by a judge, military commissions must also be able to rule on legal questions, particularly complex issues of the law of armed conflict. Judging from the voir dire proceedings, we have every reason to question their capacity to fulfill this task.
To the contrary, the panel members were visibly confused by questions about such basic legal issues as jurisdiction, ex post facto laws, and the applicability of the Geneva Conventions to armed conflict. As the presiding officer pointed out to a defendant who sought to represent himself, the military commissions will have to address very complicated issues of U.S. and international law—an admonition that applies equally to the members of the panel.
The U.S. military selected a panel for the commission that raises the perception of bias among several of its members. Several proposed members had intelligence or combat responsibilities for the conflict in Afghanistan (one even participated in the transfer of prisoners to Guantánamo) that suggest they would have difficulty issuing rulings in an impartial manner. Defense attorneys ultimately sought the dismissal of five panel members and alternates on these grounds. It would have been far preferable for the U.S. government to have selected available commission members who had not participated in the armed conflict in Afghanistan.
We were especially surprised to learn that the presiding officer on the commission is a long-time friend of the appointing authority—the Defense Department appointee who is responsible for filing criminal charges before the commission and who rules on certain interlocutory questions. At one point the presiding officer even replied to an objection by the prosecution by indicating that he could predict the appointing authority’s response due to their close friendship. Their relationship raises obvious questions of bias that are further exacerbated by the fact that the appointing authority will be ruling on the voir dire motions and other motions forwarded to him by the presiding officer. The equivalent officer in courts-martial, called the convening authority, has no such judicial role.
Ability to Challenge Evidence
The August hearings made clear that defendants before military commissions will be unable to challenge fairly the evidence presented against them. The hearings were marred by frequent problems with the U.S. government translators, who proved incapable of satisfactorily interpreting between the Arabic and English, especially legal terminology. Some of these mistranslations significantly altered the meaning of the defendants’ statements and made their understanding of the proceedings extremely difficult. The ICCPR explicitly states that any criminal defendant has the right “to be informed … in detail in a language which he understands of the nature and cause of the charge against him” (art. 14(3)(a)).
The military must address the problem of translation by employing more capable translators at future hearings. In addition, official audio recordings of the entire hearings (including all translations) should be maintained so that translations can be checked afterwards for accuracy. What cannot be fixed are mistranslations that occurred during the interrogation of the defendants, other detainees, and witnesses that will be submitted as evidence. Given the obvious shortcomings of the official translators at these public hearings—before defense counsel, the international media and non-governmental observers—there can be no basis for confidence that the translators involved during closed interrogations would meet necessary standards of competence.
The commission rules on evidence only exacerbate the problem. Existing U.S. military and federal rules on hearsay evidence do not apply to the military commissions. Under the military commission rules, evidence is admissible so long as the presiding officer determines that it would have “probative value to a reasonable person.” Decisions by the presiding officer to exclude evidence may be overturned by a vote of the majority of the commission. As a result, the defense will have to contest admissible evidence that may be derived from faulty translations—and have no real opportunity to assess whether the translation was accurate or not. That is, because the witness making the statement will not be in the courtroom, there will be no way to ensure that the out-of-court statement was translated accurately. If hearsay were not allowed, then at least the poor translation made in the courtroom could be corrected.
Use of Coerced Confessions
Human Rights Watch remains concerned that evidence gathered through coerced confessions will be admissible at the commissions. Although this issue was not directly raised in the first week’s hearings, it was the subject of Defense Department media briefings.
Several Defense Department-authorized investigations have shown torture and other mistreatment of detainees at Guantánamo Bay, Afghanistan and Iraq. As the Schlesinger Commission report noted: “[S]ome of the abuses which occurred at Abu Ghraib which were not photographed did occur during interrogation sessions and … abuses during interrogation sessions occurred elsewhere” (p. 5). Human Rights Watch has reported extensively on the abuse of detainees in U.S. facilities in Bagram, Kandahar and other detention centers in Afghanistan, which strongly suggests that evidence gathered in such places may be tainted by torture and other mistreatment.
As noted, the commission rules permit the admission of all evidence with probative value. Unlike in civil law countries that have similar evidentiary standards, the commission rules do not prohibit evidence obtained through torture or other forms of coercion. U.S. courts-martial and federal courts are prohibited from using evidence obtained through coercion. This prohibition is a fundamental precept of international human rights law. The absence of such a prohibition violates the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified by the United States in 1994, which states that “[e]ach state party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings” (art. 15).
Lack of Resources for Defense Counsel
Assigned military defense counsel have committed themselves to the zealous representation of their clients. It is clear that the Department of Defense has not provided them with adequate resources to carry out their responsibilities. The defense team has too few lawyers and paralegals. The defense also lacks basic infrastructure, such as sufficient computers and telephones to allow several defense teams to work at Guantánamo Bay simultaneously (as the proceedings demand). The defense team’s conference table was even taken from their room right before proceedings began, forcing the defense to conduct their work on the floor. These problems should be remedied immediately, before the proceedings go any farther.
Taken together, these issues highlight just a few of the problems that beset the military commissions in its first week of proceedings. As the cases progress, and as new prosecutions are undertaken, issues such as these are likely to multiply. These problems only deepen the concerns Human Rights Watch and others have noted in the commission rules and structure. Instead of providing a legitimate forum to achieve justice for war crimes, crimes against humanity and acts of international terrorism, the military commissions themselves will be on trial.
Human Rights Watch urges the U.S. government to reject these fundamentally flawed commissions and instead pursue prosecutions consistent with U.S. military and federal law that meet international fair trial standards. Justice can only be better served by doing so.