The failure of the Guantánamo Bay hearings to meet basic standards for fair trials shows that the U.S. military commissions are fatally flawed and must be scrapped, Human Rights Watch has told U.S. Defense Secretary Donald Rumsfeld.
“The Guantánamo hearings clearly demonstrated that the military commissions lack competence, impartiality and fair rules of procedure,” said Kenneth Roth, executive director of Human Rights Watch. “It’s time for the U.S. government to put the military commissions out of commission.”
Human Rights Watch found that commission rules and practices fall far short of international fair trial standards. At the Guantánamo hearings, recognized rules of legal procedure were not used, and the competence and impartiality of proposed commission members was questionable. Moreover, military defense counsel lacked resources, and the defense faced procedural obstacles in challenging evidence.
Human Rights Watch supports the prosecution of those implicated in war crimes, crimes against humanity, and acts of international terrorism by tribunals that meet international fair trial standards. Bringing people to justice requires fair trials. By resurrecting World War II-era military commissions, rather than using existing criminal courts or courts-martial, the Bush administration has unfortunately placed the international spotlight on the unfairness of the trials at Guantanamo, rather than on the alleged crimes of the accused.
The Human Rights Watch trial observer, Sam Zarifi, found the commission hearings to be needlessly confused, as did many others present. The commission’s presiding officer and the 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.
Although the commission serves as both judge and jury, only the presiding officer has a legal education. The other 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. The lack of expertise is a problem because, as the presiding officer acknowledged, the commissions will have to address very complicated issues of U.S. and international law.
The hearings also raised serious concerns about the impartiality of commission members. The four defendants currently before the commissions are all held in connection with the conflict in Afghanistan. However, several commission members had intelligence or combat responsibilities for this conflict, which raises questions about their ability to be impartial. It was especially surprising that the presiding officer on the commissions was a longtime friend of the appointing authority, a Defense Department appointee given significant judicial powers, furthering concerns about bias in commission rulings.
The hearings were marred by frequent problems with the U.S. government translators, who proved incapable of satisfactorily interpreting between Arabic and English. Some of these mistranslations significantly altered the meaning of the defendants’ statements and made their understanding of the proceedings extremely difficult. The use of poor translators, even if addressed in future hearings, raises important concerns about whether testimony obtained outside the courtroom from detainees at Guantánamo and other witnesses is at all accurate.
The military defense counsel assigned to the cases have provided zealous representation of their clients, but the Defense Department has not provided them adequate resources to carry out their responsibilities. The defense team has too few lawyers and paralegals, and lacks basic infrastructure like sufficient computers and telephones. Just before the August proceedings began, the defense team had to conduct their work on the floor after the conference table was removed from their room.
Human Rights Watch said in its letter to Rumsfeld that the initial hearings highlighted just a few of the problems facing the military commissions. As the cases progress, and as new prosecutions are undertaken, issues such as these are likely to multiply.
“The Bush administration needs to reject these fundamentally flawed commissions,” said Roth. “Justice can only be served if the U.S. government brings prosecutions that meet international fair trial standards. That means prosecution before federal criminal courts or courts-martial.”