What's Good For The Goose...
Trial By Nationality?
by Nyier Abdou
Nyier Abdou looks at accusations that the US is dispensing justice to Al-Qa'eda suspects by fiat.
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Concessions won by British and Australian negotiators last week regarding their nationals detained as Al-Qa'eda suspects have sparked further controversy in the ongoing dispute over US military commissions. Since it was announced in November 2001 that the US would set up military commissions to try foreign terrorism suspects, human rights advocates have decried the proposed trials as substandard justice.
Whether it was the force of the considerable international outcry concerning the nebulous legal status of Al-Qa'eda suspects detained at the US naval base in Guantanamo Bay, Cuba - or whether it simply took this long to wade through the bureaucratic channels of the US military and intelligence services - it was not until early this month that the first six prisoners were named by US President George W Bush under the presidential order that established the commissions. The so-called Final Rule that adjudicates the commissions was not issued by the Department of Defence until late June.
Some 680 prisoners from over 40 different countries - the large bulk of them detained during the US-led war in Afghanistan - are kept at "Camp Delta" detention facility in Guantanamo. Classified as "illegal combatants" by the US, the prisoners are being held incommunicado indefinitely. None has seen a lawyer or family and none has been charged with a crime.
Because defendants can face the death penalty, the highly controversial commissions have raised particular ire among European Union countries, which categorically oppose the death penalty. Among the detainees at Guantanamo, 18 are EU citizens - nine Britons, six Frenchmen, a Dane, a Spaniard and a Swede. Although the US has not named the six prisoners under the military order, it is widely known that British citizens Moazzam Begg and Feroz Abbasi and Australian David Hicks are among them.
Naming the six as "subject" to the military order is only the first step towards a military commission - it means that the suspects can be taken into custody by Secretary of Defence Donald Rumsfeld. This, of course, was already the case with the Guantanamo detainees. But the realisation that British citizens could face the death penalty in the commissions finally spurred the British government to act aggressively in its citizens' interests. Besieged by cross-party political forces, British Prime Minister Tony Blair personally pressed the issue of the tribunals during his visit to Washington earlier this month.
Some 200 British parliamentarians signed a motion calling for the extradition of British suspects for a civilian trial, but that prospect is unlikely. Instead, negotiations between US officials and British Attorney-General Peter Goldsmith last week produced assurances from Washington that the British prisoners would not face the death penalty and promised some additional legal rights. Benefiting from Britain's assertive efforts, Australian Justice Minister Chris Ellison won similar rewards for Australian detainees in separate talks.
Exempting British and Australian suspects from the death penalty invites accusations of "selective justice", risking further condemnation on an already sensitive issue. The implication that Washington is offering a political favour to two of the US's staunchest allies in the war on Iraq cannot be avoided, and it raises new speculation about the justice served by the commissions.
Kevin Barry, a retired captain with the US Coast Guard and also a legal expert at the National Institute of Military Justice (NIMJ), notes that it is not only crucial that the tribunals meet both American and international standards of justice - "due process, fundamental fairness, natural justice" - it is also essential that they are perceived to do so. Recent developments, he conceded, "have already raised additional concerns regarding fairness". If the international community fails to see the trials as independent and impartial, Barry argues, "then the risk is that American prestige will suffer and the war against terrorism may be hampered, rather than furthered".
"The Bush administration was in a bind - it risked outrage either way that it handled the situation," says Joanne Mariner, a FindLaw legal expert. The Bush administration could not ignore a personal appeal from Tony Blair, but by giving in to British pressure, it opened itself up to demands from other nations. "The Bush administration risked outrage from all the countries whose nationals will not benefit from the improved rules," suggests Mariner. "Those countries already have good reason to condemn the military commission trials, given their substandard nature. But the inequality of treatment of their detainees, compared to British and Australian detainees, should lead them to protest vigorously to American authorities".
One of the most prominent issues raised about the US military tribunals is that they fail to meet the standards of due process. Recommendations regarding the military commissions issued in 2002 by the American Bar Association's "Task Force on Terrorism" invoke the International Covenant on Civil and Political Rights to demand that rights given defendants include, among others, "counsel of one's choice" and the right to "seek habeas corpus relief in US court". It also says a death sentence must require a unanimous vote.
But all of these rights are explicitly denied by the 2001 military order. Ken Hurwitz, senior associate at the international justice programme of the New York-based Lawyers Committee for Human Rights (LCHR), notes that, by definition, the tribunal is not independent, since it is part of the same chain of command as the president and cannot be appealed in an independent court. The defendant must have a military lawyer, "even if he doesn't want one," says Hurwitz. "They can have a civilian lawyer, but only one who has security clearance and is an American citizen - and is willing to put up with many hardships - which tends to undermine counsel of one's choice". Finally, attorney-client meetings can never be confidential, since they can be monitored by the Defence Department.
Stephen Jakobi, director of the London-based Fair Trials Abroad (FTA), which has prominently campaigned on behalf of the European detainees, stresses that the commissions are in flagrant violation of international law. Pointing to the "fundamental right" that the defence and prosecution have equal rights to all the evidence and witnesses before an independent tribunal, he remarked, "I cannot see where this tribunal conforms".
Military lawyers, adds Hurwitz, are, in many cases, "quite upset that these stripped down trials are being mistaken for military justice". The US courts martial system, under the Uniform Code of Military Justice, he notes, is "actually a system about which military lawyers are rightly quite proud".
Despite what Lord Goldsmith hailed as constructive negotiations, many law experts maintain that little was actually won for British nationals in Washington. Reports following negotiations said that Goldsmith had secured the right for British prisoners to choose their own US civilian lawyers and use British lawyers as "consultants". But all prisoners have the right to take on private council, if they have the sufficient funding to do so. It's not clear if the obligatory military lawyer would still remain present, or what the status of "consultant" actually means.
The Final Rule states that a defendant cannot dispense with his military defence lawyer, though he can request a different military defence lawyer from the one he has been assigned. But the 22 July statement by Goldsmith says it was agreed that "each detainee will be able to decide to what extent he wishes the appointed military counsel to participate in the preparation of his case".
"If this is true, it is in direct conflict with the stated rule," says Hurwitz. But he adds that a 23 July statement issued by the Department of Defence makes no reference to this part of the supposed agreement.
Military law expert Barry says that if British "consulting counsel" are allowed to speak privately with prisoners, it would also mark a significant departure from the Final Rule, which, "presumably remains applicable to all other detainees". But this too is not clear, and the vague concessions have not impressed FTA's Jakobi. "I have seen no indication that the UK has been successful in fair trials issues in the negotiations so far," he said.
It has been said that one reason Blair was reluctant to push for an extradition of Moazzam Begg and Feroz Abbasi is that there is not sufficient evidence to convict them in a civilian court in the UK. An acquittal would obviously be embarrassing for both the US and the UK. In an American civilian court - or even a US courts martial - the case against the defendants would be manifestly weak, suggests Hurwitz. Interrogations took place without legal counsel present and testimony seen to be extracted under duress or based on hearsay would likely be thrown out. "That doesn't mean the evidence wouldn't necessarily be true. It just means that it would be excluded as improperly obtained or inadequately authenticated," surmises Hurwitz. "This is a guess - but a good one".
Even without an extradition, however, the decision to exempt British and Australian prisoners from the death penalty and offer them different rights can only open a can of worms. Other nations will be sure to demand the same and the US will have to be held to some kind of account if it denies these requests. "Notably, international human rights law does not permit countries to discriminate between citizens and non-citizens with regard to their fair trial rights," says legal expert Joanne Mariner. "The fact that a defendant is not a US citizen is no justification for weakening protections for their internationally recognised rights".
Mariner suggests that Britain's efforts to press the US on these rights is a good example, saying that nations should also raise the issue with the UN. But FTA's Jakobi maintains that the Guantanamo Bay situation "is a disaster for the international community and for the UN".
"The pity of the current situation is that 'might is right'," says Jakobi. "Who in a real world can call the US to account? If the UK cannot get worthwhile concessions, who can?"
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– Nyier H Abdou
Nyier H Abdou
Al-Ahram Weekly
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E-mail: Nyier H Abdou
This article was first run on Al-Ahram Weekly
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