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amnesty international

USA: Trials in error

Third go at misconceived military commission experiment

Military commissions wrong choice in 2001, wrong in 2006, and would be wrong now

16 July 2009 AI Index: AMR 51/083/2009

There is still much to do before the Guantánamo chapter is truly brought to a close. Its

remaining inmates must either be tried before a court of law – like any other suspected

criminal – or set free

Statement by the UN High Commissioner for Human Rights, Navanethem Pillay, on the International Day in Support of Victims of Torture, 24 June 2009 1.




In a September 2002 report, the assistant commander of the US Army Intelligence Center described the detention facility at the US Naval Base at Guantánamo Bay in Cuba as “America’s Battle Lab” in the global “war on terror”. In his review of intelligence operations at the base, Colonel John Custer recommended the creation of an environment at Guantánamo that would be “conducive to extracting information by exploiting the detainees’ vulnerabilities”.1 According to the then head of the Pentagon’s Criminal Investigative Task Force (CITF), two commanders in charge of the Guantánamo detentions, Major General Michael Dunlavey and his successor, Major General Geoffrey Miller, adopted the “Battle Lab” description. They were among those officials who sought approval for, or approved, interrogation methods that violated the prohibition of torture and other cruel, inhuman or degrading treatment.2 In a major speech on national security on 21 May 2009, in which he explained his decision to close down the Guantánamo detention facility, President Barack Obama said that the detentions there had been a “misguided experiment”. The use of coercive interrogations conducted out of sight of independent judicial scrutiny, legal counsel and other fundamental safeguards for the detainees was at the heart of this experiment.

Trials by military commission were conceived as part of this approach to detentions. Detainees were treated as little more than objects from which to extract information, rather than human beings accused of criminal conduct to whom fair legal process was due. Human rights violations, including the crimes under international law of torture and enforced disappearance, were the result. A forum for trials was developed that was vulnerable to political interference and could minimize independent external scrutiny of detainee treatment. Further, contrary to international guarantees of equality before the courts and to equal protection of the law, to which the USA had agreed, the system was applied on prohibited discriminatory grounds: US nationals accused of identical conduct would continue to receive the full fair

–  –  –

trial protections of the ordinary US criminal justice system while non-nationals could be deprived of those protections on the basis of their national origin alone.3 After taking office, President Obama obtained suspensions in military commission proceedings. However, the administration did not abandon the commissions, and in March 2009 it noted that “at the direction of the Secretary of Defense, the Department of Defense continues to investigate and evaluate cases for potential trial by military commission”.4 In a hearing in front of the Senate Appropriations Committee on 30 April 2009, Secretary of Defense Robert Gates said that the commissions were “still very much on the table”.5 In a media interview on 8 April 2009, Attorney General Eric Holder suggested that “a substantial number” of the people the administration decided to charge would be brought to trial in the civilian federal courts, while others could be taken to “military courts” with “some enhanced measures”.

In a statement on 15 May 2009, President Obama said that his administration would reform the military commissions to make them “a legitimate forum for prosecution, while bringing them into line with the rule of law”. Among the reforms would be to prohibit the admission at trial of statements obtained under cruel, inhuman or degrading treatment, a tightening of the rules on the use of hearsay evidence, and “greater latitude” for detainees to choose their US military lawyers. In his national security speech a week later, he said that his administration would work with Congress on legislation to “ensure that these commissions are fair, legitimate and effective”. Legislation to amend the Military Commissions Act of 2006 (MCA) was under development at the time of writing.

In his speech on 21 May 2009, President Obama said that, “when feasible”, trials of Guantánamo detainees would be conducted in federal court, but military commissions would be retained for trials of detainees “who violate the laws of war”, where there was a need to protect “sensitive sources and methods of intelligence-gathering”, or where there was a need to use “evidence gathered from the battlefield that cannot be effectively presented in federal courts”.

President Obama is seeking to reform what, as a presidential candidate in 2008, he had described as an “enormous failure”. Amnesty International considers that this military commission experiment failed, as it was doomed to, because its design was never actually about determining criminal responsibility through fair trial. It was about short-changing justice by weighting the system in favour of the government.

The organization considers that the commissions have been so tainted as to put them beyond reform.

In a US Senate hearing on military commissions on 7 July 2009, retired US Navy Rear Admiral and

former Judge Advocate General, John D. Hutson, said:

“If the point of the exercise is to create a court system that will ensure convictions of alleged terrorists against whom we don’t have sufficient admissible evidence, then we have missed the point. You can’t have a legitimate court unless you are willing to risk an acquittal. If you aren’t willing to accept the possibility that a jury will acquit the accused based on the evidence fairly presented, then it isn’t really a court. It’s a charade”.6 Rear Admiral Hutson described himself as “an early and ardent supporter” of the military commission experiment begun by President George W. Bush in November 2001. He now opposes the commissions, however, and urged the Senate Armed Services Committee to work for repeal rather than reform of the

MCA and to support trials in federal court, not by military commission. He said:

“It is not only unnecessary, it is inappropriate for DoD [Department of Defense] to operate a system of justice in parallel to DoJ [Department of Justice]… We don’t ask DoJ to fight wars. We shouldn’t ask DoD to prosecute terrorists”.

–  –  –

At a hearing in front of a subcommittee of the US House of Representatives the following day, a former prosecutor from the military commissions, Lieutenant Colonel Darrel Vandeveld, said that in 2007 he had entered his job at the Office of Military Commissions as a “true believer”, and had left it in 2008 as the “seventh military prosecutor at Guantánamo to resign because I could not ethically or legally prosecute

the defendant within the military commission system at Guantánamo.”7 He argued that:

“The military commissions cannot be fixed, because their very creation – and the only reason to prefer military commissions over federal criminal courts for the Guantánamo detainees – can now be clearly seen as an artifice, a contrivance, to try to obtain prosecutions based on evidence that would not be admissible in any civilian or military prosecution anywhere in our nation.”8 Lt. Col. Vandeveld drew the subcommittee’s attention to what he said was the poor collection and filing of evidence that had taken place in the commission cases, and pointed to the case of Mohammed Jawad, an Afghan national taken into custody by the USA when he was a child and who is still in Guantánamo

today and facing possible trial by military commission (see also Section 2):

“The obvious reason behind the shoddy preparation of evidence against Mr Jawad is that it was not gathered in anticipation of any semblance of a ‘real’ trial. With the government setting an extremely low evidentiary bar for continued detention without charge, with the focus on extracting information through coercive interrogations rather than on prosecution, and with the understanding that any trials will forego fundamental due process protections, there is little incentive for investigators to engage in the type of careful, systematic gathering of evidence that one would find in a typical civilian trial. In the case of Mr Jawad, these incentives proved manifestly perverse; they allowed for the prolonged detention and abusive treatment of a juvenile who is very likely innocent of any wrongdoing”.9 As documents now in the public realm show, the Bush administration was warned early on by insiders that if it embarked on the use of interrogation techniques that amounted to torture or other ill-treatment, it risked jeopardizing trials of detainees. In 2002, for example, an official pointed out that “successful prosecutions in military commissions or subsequent use of detainee statements in Federal prosecutions” would require that the information be legally admissible. Even though this would be a lesser issue under the low standards pertaining in the military commissions, he wrote, many of the proposed interrogation techniques would “place a burden on the prosecution’s ability to convince commission members that the evidence meets even that low standard”. He added that “any statements obtained under these circumstances will be inherently suspect and of questionable value in a prosecution using established rules of criminal procedure that prohibit such conduct on the part of law enforcement agents”.10 A 2002 CITF memorandum expressed concern that despite opposition within law enforcement agencies to the use of harsh interrogation techniques, “there appears to be a tendency to revert to a short-sighted coercive model of interrogation”.11 An FBI email from May 2004 recalled earlier “weekly meetings” in which FBI and Justice Department personnel had “all agreed” that the Pentagon’s interrogation tactics at Guantánamo “were going to be an issue in the military commission cases”, and that this had been brought to the attention of the Office of General Counsel at the Pentagon, but that the Department had “their marching orders from the SECDEF [Secretary of Defense]”. 12 Major General Miller, then commander of detention operations at Guantánamo, was warned by the FBI that the Pentagon’s interrogation methods, “could easily result in the elicitation of unreliable and legally inadmissible information”, but he still favoured those methods.13 The first incarnation of the commissions – executive bodies established under a military order signed by President Bush on 13 November 2001 – was ruled unlawful by the US Supreme Court in June 2006 in part on the grounds that they violated the Geneva Conventions.14 The Bush administration responded by seeking and obtaining congressional approval for a version of the military commissions closely modelled Amnesty International 16 July 2009 AI Index: AMR 51/083/2009 4 USA: Trials in error. Third go at misconceived military commission experiment on the version that the Supreme Court had already thrown out. To achieve this, as outlined further below, President Bush exploited the cases of 14 detainees whose rights had been systematically violated for years by the USA in a secret detention and interrogation program operated largely by the Central Intelligence Agency (CIA).

Amnesty International considers passage of the Military Commissions Act in the autumn of 2006, as congressional elections loomed, to have been a shameful episode. With domestic politics trumping international human rights principles, passage of the Act essentially gave a green light to continuing secret detention and detainee ill-treatment, the denial of habeas corpus and judicial remedy, and the facilitation of impunity for human rights violations. The MCA was and remains incompatible with international law.

Among those voting against the Act was Senator Barack Obama. He condemned the politicization of the

human rights of detainees, predicting that:

“There are going to be 30-second attack ads and negative mail pieces criticizing people who don’t vote for this legislation as caring more about the rights of terrorists than the protection of Americans. And I know this vote was specifically designed and timed to add more fuel to the fire.

Yet, while I know all of this, I am still disappointed because what we are doing here today, a debate over the fundamental human rights of the accused, should be bigger than politics.”15 In his national security speech two and a half years later, President Obama made a strong defence of his decision to close the detention facility at Guantánamo Bay. He noted that, “over the last several weeks, we have seen a return of the politicization of these issues that have characterized the last several years”,

with some using words “calculated to scare people rather than educate them”. He continued:

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