U.S.: New Military Commissions Threaten Rights, Credibility

If the Executive Order is implemented, it will do permanent damage to the United States' ability to champion human rights and the rule of law around the world. It will undercut the U.S. government's efforts to protect the rights of U.S. citizens before foreign tribunals. And it will undermine the human rights standards that you have said are key to distinguishing terrorism from lawful conduct.

The Executive Order raises important concerns regarding U.S. obligations under the International Covenant on Civil and Political Rights (ICCPR), which the U.S. ratified in 1992. Article 4 of the ICCPR does permit a state to take measures derogating from its obligations under the Covenant in time of public emergency that threatens the life of the nation and is officially proclaimed. The U.S. declaration of a national emergency on September 14 may be considered to have met that condition, although to our knowledge the required formal notification of the U.N. Secretary-General has not occurred.

However, a state's ability to derogate from the ICCPR is not unlimited. Derogation is never permitted from certain rights, such as the right to be free from torture (article 7) and the prohibition of ex post facto laws (article 15). Otherwise, a state may derogate from its obligations under the ICCPR only "to the extent strictly required by the exigencies of the situation" and provided that such measures are not inconsistent with its other obligations under international law. The Human Rights Committee, the international body charged with interpreting the ICCPR and monitoring compliance with it, states in its General Comment on article 4 that "This condition requires that States parties provide careful justification not only for their decision to proclaim a state of emergency but also for any specific measures based on such a proclamation....[T]hey must be able to justify not only that such a situation constitutes a threat to the life of the nation, but also that all their measures derogating from the Covenant are strictly required by the exigencies of the situation."

The U.S. must thus meet a high burden to show that the rights circumscribed under the Executive Order meet the standard for derogating from rights under the ICCPR. As discussed below, the Executive Order fails to meet this burden as it sharply curtails the right to liberty and security of the person under article 9 and the right to a fair trial under article 14. These rights not only are found in international law but are central to the fundamental rights of due process in the United States.

Right to Liberty and Security of Person

Section 2 of the Executive Order permits the arrest and detention of persons on grounds that are vague and overbroad. It allows taking a person into custody if the President has "reason to believe" that the individual took part in "acts of international terrorism" against the United States. Because neither the meaning of "international terrorism" nor the nature of proscribed complicity is defined, the Executive Order is an extreme derogation of the ICCPR article 9 prohibition against arbitrary arrest and detention. Indeed, given the possibility that these provisions could be interpreted to proscribe conduct that was not already criminal, the Executive Order could even run afoul of the ICCPR's nonderogable prohibition of ex post facto criminal laws.

In addition, Section 3 of the Executive Order risks rendering ICCPR article 9 effectively meaningless by providing for conditions of detention that are distinct from those under existing U.S. law. Most significant are not the protections afforded detainees - including humane treatment, adequate food and water, access to health care - but those fundamental protections left off the list. There is no requirement, for example, that persons detained under the Executive Order be told the reason for their arrest or be promptly informed of charges against them; that persons deprived of their liberty be brought before a judicial authority who can decide on the lawfulness of their detention; or that those unlawfully arrested or detained shall have an enforceable right to compensation. Effectively the Executive Order allows for the arrest and indefinite detention of persons without charge and without legal recourse should they be unlawfully held. This is a clear abrogation of the fundamental right to liberty and security of person, well beyond the derogation permitted under article 4 of the ICCPR.

Right to a Fair Trial

Human Rights Watch believes the open-ended provisions for the trial of persons under the Executive Order also exceed the limits of acceptable derogation of the right to a fair trial under international law. Although the mere establishment of a military commission and various procedures set out in the Executive Order are not necessarily in violation of international law, the absence of key provisions regarding certain fundamental rights is a basis for extreme concern.

Section 4 of the Executive Order states that at a minimum all trials shall be "full and fair," but leaves the specifics open to future orders and regulations. For instance, there are no provisions for determining whether and to what extent trials should be public, nor even a requirement that judgments be made public. There is no requirement of a presumption of innocence, or that defendants have access to the evidence submitted against them, or even that proof of guilt be established beyond a reasonable doubt. It is left undetermined to what extent defendants will have access to legal counsel of their choosing, whether they will be able to communicate with counsel, and whether adequate time and facilities will be provided for a defense. No protection is provided against forced confessions.

Section 7 of the Executive Order states that a terrorist suspect "shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual's behalf" before a U.S. or any other court. Indeed, there is not even a provision for appellate review by a separate military commission panel, only non-judicial review by the President or the Secretary of Defense as the President's designate. This denies the defendant the right to an appeal provided under international law, which is especially troubling because the Executive Order expressly contemplates military commissions handing down death sentences. It also denies the right to effective redress to all persons, including U.S. citizens, who might be affected adversely by the law.

The comments made yesterday by Attorney General Ashcroft do nothing to correct these severe deficiencies. He claimed that because the terrorists responsible for the September 11th attacks committed war crimes, they "do not deserve the protection of the American Constitution." But the U.S. government has repeatedly argued that people accused of war crimes deserve full due process protection. That is certainly the case for U.S. soldiers who might be accused of war crimes by foreign courts, and it has even been true of alleged war criminals in Bosnia and Rwanda. The United States cannot credibly insist on due process when others are the victims if it refuses to accord the same due process when Americans are the victims.

Human Rights Watch believes the Executive Order is contrary to fundamental principles of human rights. While the rights in question may be derogated from in times of emergency, the U.S. must show that this is being done only to the extent strictly required by the exigencies of the situation. The far-reaching and ambiguous reach of the Executive Order strongly indicates that this is not the case. It is hard to imagine such a military commission escaping criticism by the U.S. government if created by another government. It is wrong and unlawful for the U.S. government to arrogate to itself the power to transgress these well established protections of international human rights law.

We urge you to rescind the Executive Order. Should any derogation from the rights provided under the ICCPR prove necessary, it should be done in a manner consistent with the strict requirements of international law.

Sincerely,

Kenneth Roth
Executive Director

cc: Vice President Richard Cheney
The Honorable Colin Powell, Secretary of State
The Honorable Donald Rumsfeld, Secretary of Defense
The Honorable John Ashcroft, Attorney General
The Honorable Condoleezza Rice, Assistant to the President for National Security Affairs