US: New Legislation on Military Commissions Doesn’t Fix Fundamental Flaws - Human Rights Watch

Proceedings to Try Detainees at Guantanamo Remain Substandard

October 8, 2009

The US Military Commissions at Guantanamo Bay.

2008 Reuters

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Tinkering with the discredited military commissions system is not enough. Although the pending military commissions legislation makes important improvements on the Bush administration’s system, the commissions remain a substandard system of justice.

Joanne Mariner, Terrorism and Counterterrorism Program director

(New York) - Draft legislation on military commissions fails to remedy the system's serious flaws, Human Rights Watch said today.

The amendments to existing military commissions legislation - to be called the Military Commissions Act of 2009 - were included in the conference report on the National Defense Authorization Act (NDAA). The new rules are expected to be passed by Congress this week.

"Tinkering with the discredited military commissions system is not enough," said Joanne Mariner, Terrorism and Counterterrorism Program director at Human Rights Watch. "Although the pending military commissions legislation makes important improvements on the Bush administration's system, the commissions remain a substandard system of justice."

The Military Commissions Act of 2009 revises the procedures governing the use of military commissions to try alien "unprivileged enemy belligerents" (individuals labeled "unlawful enemy combatants" during the previous administration). The draft legislation addresses some of the worst due-process failings of the Military Commissions Act of 2006.

Notably, the bill limits the admission of coerced and hearsay evidence and grants greater resources to defense counsel. The revised system would still, however, depart in fundamental ways from the trial procedures that apply in the US federal courts and courts-martial. Nor does it satisfy the constitutional and policy concerns set forth by the Obama administration in recent months. It does not, for example, include a sunset clause to set a time limit on military commission trials, a provision the administration had specifically requested.

Human Rights Watch warned that as the latest version of the military commissions created by the Bush administration, the revised tribunals would be viewed globally as unfair, harming international cooperation on counterterrorism. It noted that trying only non-US citizens before the commissions would raise further concerns about fairness and discrimination. And it pointed out that by allowing child suspects to be prosecuted in military proceedings, the US was bucking a global trend to end this practice.

The very purpose of the military commissions is to permit trials that lack the full due-process protections available to defendants in federal courts, Human Rights Watch said. Tinkering with the procedures of tribunals created from scratch forfeits the benefits of using long-established civilian criminal courts whose procedures and protections have been tried and tested via years of litigation.

The federal courts have shown themselves to be fully capable of trying terrorism cases while protecting intelligence sources and the due-process rights of the accused. In the more than seven years since the military commissions were announced, only three suspects have been prosecuted, while the federal courts have tried more than 145 terrorism cases during the same period.

Unlike the federal courts, which enjoy constitutional protection against executive pressure, the commissions lack independence. Indeed, the previous commissions were highly susceptible to improper political influence, leading several military prosecutors to resign in protest.

Human Rights Watch also raised concerns about the overbroad scope of the commissions' jurisdiction, emphasizing that civilians should not be prosecuted before military tribunals. The administration has continued to deem terrorism suspects unconnected to armed conflict to be law-of-war detainees, and the new legislation even allows alleged supporters of terrorism to be tried in military proceedings.

In light of President Barack Obama's promise that the federal courts would be the first option for trying detainees, Human Rights Watch called on the Obama administration to prosecute terrorism suspects currently held at Guantanamo in the federal courts.

"Anyone responsible for terrorist activity against the US should be tried in the regular courts, whose verdicts, unlike those of military commissions, are recognized both domestically and internationally as legitimate," said Mariner. "Any verdict obtained in the military commissions will be controversial and subject to reversal on appeal."