Law Experts Call U.S. Plans For Terrorist Trials Illegal

by Jim Lobe

Indeed, they fall so far short that some national and state bar associations that deal with military justice may advise members against participation in the tribunals -- which are called "military commissions" -- unless the rules governing them are substantially changed.

"I detect an increasingly level of concern," says Eugene Fidell, president of the National Institute of Military Justice. "There may well come a point where we may take some positions, " he said at a news conference.

The view of international human rights groups, which have been reviewing the latest rules governing the military commissions since they were made available in April, is unequivocal.

"The commissions are a discredit to American traditions of justice," says Jamie Fellner, director of the U.S. programme of New York-based Human Rights Watch (HRW). "The Department of Defense should go back to the drawing board," he said in an interview.

"The bottom line is that these rules do not guarantee a fair trial," Elisa Massimino, Washington director of the Lawyers Committee for Human Rights (LCHR), told journalists. "They need to be revised, or the order should be rescinded."

The two groups, which published separate background papers on the commission rules this week, warn that the proceedings risk embarrassing the United States internationally.

"The eyes of the world will be on these trials, and that's why they have to meet fundamental due process," says HRW's Wendy Patten. "It's crucial that they be seen as fair."

The commissions, which could be formally organized at any time, will determine the fate of at least some of the estimated 680 detainees being held at the Guantanamo base, as well as a number of others that have been captured in connection with the Bush administration's 20-month-old "war against terrorism."

The vast majority of the detainees were captured in Afghanistan, both during and after the U.S.-backed military campaign that resulted in the ouster of the Taliban regime at the end of 2001. But some were seized in other countries as part of U.S. efforts to round up suspected al-Qaeda fighters.

Five men suspected of links to al-Qaeda in Malawi were reportedly taken by U.S. officials to Botswana on Tuesday, despite an order by a Malawian court that they should not be deported. U.S. officials have not commented on the case, although six Algerians seized in Bosnia in January 2002 in a similar case, eventually surfaced in Guantanamo.

The conditions under which the detainees have been held that camp have been harshly criticized by rights groups and many governments, including some whose nationals are among the detainees.

While the prisoners have been permitted visits by consular officials and the International Committee of the Red Cross (ICRC), they have been denied many of the rights guaranteed to prisoners of war (POWs) under the Geneva Convention, including a hearing on whether they qualify for POW status.

The Pentagon has insisted that they are "unlawful combatants," a status which, according to Washington, permits it much greater latitude -- including, for example, indefinite detention without charges -- in dealing with the prisoners than the Convention permits. The Pentagon also maintains that Guantanamo is not U.S. territory, thus the detainees cannot claim due process rights guaranteed under the U.S. Constitution.

"They are in the legal equivalent of outer space," according to LCHR's Massimino.

So far, 41 detainees, mostly Afghanis, have been released and returned to their home countries, while 40 others have been transferred to a minimum-security dormitory that is seen as a major step toward "transfer" home.

Of the remainder, two or three dozen are expected to be charged with war crimes and tried before military commissions, although the Pentagon has refused to give out any numbers and has not yet indicated what it intends to do with the hundreds who will not face trial.

But it is the rules under which the commissions are supposed to operate that have become the focus for attacks by human rights groups and growing unhappiness among civilian attorneys who might have been expected to represent some of the defendants.

While the rules incorporate certain due process safeguards, such as public trials, requiring proof beyond a reasonable doubt for conviction, and the cross-examination of witnesses, these provisions are not nearly enough to overcome "serious flaws" in the rules, they say.

To begin with, no independent judicial review of verdicts will be permitted, so that the executive branch will act essentially as prosecutor, judge, jury and, as the rules provide for the death penalty, executioner.

This is a particularly grave fault, according to HRW, if the commissions are used to try people who should have been considered POWs, such as Afghan detainees who were members of the Taliban and are entitled to all Geneva protections.

The critics also argue that defendants' right to counsel is far too limited. Under the rules, all defendants will be represented by military defence counsel, even if they or their families prefer to hire a civilian attorney to defend them. This provision effectively violates the International Covenant on Civil and Political Rights -- to which the United States is a party -- which guarantees the right of criminal defendants to be represented by an attorney "of their own choosing."

Limitations on defence counsel's ability to represent clients are particularly severe, says HRW. Among other provisions, they permit the government to monitor attorney-client communications, deny access to certain documents, and require counsel to do all the work related to the defence at the site of the commissions, presumably at Guantanamo. That means that even if evidence or testimony were available in Afghanistan, defence attorneys would be barred from using it in the commission proceedings.

In addition, all public comment by defence counsel must be cleared with the military in advance, and defence attorneys must provide all their evidence and witness lists to the prosecution at least one week in advance.

"These are fundamentally contrary to the American tradition of a fair trial," says Michael Noone, a retired Air Force colonel who teaches military law at Catholic University here.

Retired Marine Corps Col. Grant Lattin, a career military attorney, says he still hopes the Pentagon will change the rules but that civilian defence attorney should participate even if they do not. "The commissions are going to go on with or without us, and we need to be inside," he said.

But LCHR's Jill Savitt says many attorneys in relevant associations are unsure whether participating in the commissions under the Pentagon's rules is inconsistent with their ethical obligations. "Ethical issues are being raised," she said.

And Gary Solis, a former military judge who recently attended a meeting of some 75 attorneys who represent military defendants, said he was "surprised" at the degree to which they wanted to keep their distance from the proceedings.