The Bush administration has proposed draft legislation that largely recreates the deeply flawed military commissions that the Supreme Court struck down last month in Hamdan v. Rumsfeld, Human Rights Watch said today.
Worse, the administration’s proposed legislation asks Congress to authorize its discredited policy of holding people indefinitely without charge. The draft legislation would authorize detaining people picked up anywhere in the world, including U.S. citizens, and holding them indefinitely without charge if the administration unilaterally deems them to be “associated with” or “part of” al-Qaeda or the Taliban.
“The White House seems tone-deaf to the concerns expressed by the Supreme Court, Congress, and its closest European allies,” said Jennifer Daskal, advocacy director of the U.S. program at Human Rights Watch. “Instead of devising fair tribunals based on the court-martial rules, the administration wants Congress to belatedly adopt the whole Guantanamo package.”
The draft legislation would also effectively rewrite the minimum, humane-treatment standards of the 1949 Geneva Conventions, undercutting key protections for soldiers and civilians worldwide, including Americans.
As a means of prosecuting persons for violations of war crimes, the administration’s proposed legislation disregards existing laws requiring military commissions to be based as closely as is practicable on the established rules and procedures laid out in the Uniform Code of Military Justice and the Manual for Courts Martial. The Judge Advocates General of each of the armed services, in hearings before the Senate Armed Services Committee two weeks ago, each endorsed the view that the court-martial system, with its deep reservoir of rules and precedents, should serve as the starting point for any military commissions authorized by Congress. The administration’s proposal, in contrast, would create an entirely new court system – including a new appeals tribunal – which fails to guarantee even the barest minimum of due process. Those fair-trial shortcuts would inevitably lead to a whole new round of litigation over the legitimacy of the new commissions.
Of particular concern, the proposed commissions would allow the accused to be excluded from portions of his own trial; to be convicted based on evidence that he has never seen or had a chance to rebut; and to be convicted and executed based exclusively on second- or third-hand summaries of witness statements, without any chance to confront his accusers or fairly determine whether their statements were coerced.
“If the administration has its way, attention will remain focused on the deeply flawed military commissions, and not on the suspects and their alleged crimes,” Daskal said.
Although the administration relies on wartime justifications to explain the justice system it proposes, the legislation would extend to cases that lie far beyond armed conflict situations. It would create a system under which the administration could detain virtually anyone, anytime, anywhere around the world, call him an enemy combatant, indefinitely detain him in military custody, and deprive him of his normal due process rights in favor of the compromised proceedings of the military commissions. This would extend congressional approval to cases such as the unlawful detention without charge of Jose Padilla, an American citizen who was arrested in Chicago and held in solitary confinement for three-and-a-half years.
Of particular concern, the legislation would also abandon the absolute standards of humane treatment required by Common Article 3 of the Geneva Conventions and replace them with a balancing test, under which the definition of inhumane treatment would vary according to the perceived need of the detaining power. The administration would achieve this by tying the definition of the relevant terms in Common Article 3 to the definition of “cruel, inhuman, and degrading” under the Detainee Treatment Act. This the administration has interpreted as imposing a relative, rather than absolute, standard of humane treatment, arguing that virtually any form of inhumane treatment might be acceptable if national security demands obtaining information from a detainee.
Common Article 3, on the other hand, has always been interpreted by the United States and the international community as establishing an absolute standard, providing a bright line rule that protects all combatants and civilians, including American soldiers. That effective rewriting of the Geneva Conventions would make the United States the first country in the world to attempt formally to limit this minimum standard of humane treatment. Given last month’s Department of Defense directive – confirming that the military has long mandated the humane treatment standards of Common Article 3 - this proposed change appears to serve the sole purpose of protecting CIA officials who engage in cruel and inhumane interrogation techniques, at the expense of U.S. soldiers’ safety.
This permissiveness toward inhumane treatment is also reflected in the administration’s proposal for new military commissions. The proposal not only allows, but actually seems designed to facilitate, admission into evidence of statements taken under coercive interrogation. By allowing hearsay evidence and refusing to disallow statements taken under coercion short of torture, the proposal makes it virtually impossible for suspects to contest statements taken under many of the highly coercive interrogation techniques – including use of dogs, forced nudity and sexual humiliation, extended sleep deprivation and prolonged use of painful stress positions – that the administration has repeatedly approved.
“The administration’s proposal seems intended to avoid embarrassing revelations about its torture and mistreatment of detainees,” Daskal said. “Creating a travesty of a fair trial will only compound the injustice of the administration’s unlawful interrogation practices.”
