"The Administration went a long way towards meeting human rights concerns and preserving the reputation of U.S. military justice. But, under the rules, the president still remains both prosecutor and judge," said Jamie Fellner, director of Human Rights Watch's U.S. program. "There is no security rationale or other justification for denying persons tried by the commissions the right of appeal to a court outside the military chain of command."
The rules limit appellate review of the commissions to a specially created panel appointed by the Secretary of Defense. Any civilian appointed to the panel would be temporarily deputized as a military officer. The rules do not permit appeal to U.S. federal courts or to the U.S. Court of Appeals for the Armed Forces, which is composed of civilians and is independent of the executive branch. The rules leave standing the provision in the November 13 order giving the president final review of commission convictions and sentences.
The failure of the Bush administration to properly determine the legal status of prisoners held by the U.S. armed forces brings into question who can properly be tried by the military commissions. Under the Geneva Conventions, prisoners-of war (POWs) responsible for war crimes and other offenses should be tried by regular military courts-martial. Military commissions may only be used to try non-POWs engaged in armed conflict against the United States. Under President Bush's order, he may unilaterally subject to trial by military commission any non-U.S. citizen suspected being a terrorist, including noncombatants or persons who are not members of al-Qaeda. The rules announced today deny any recourse
to a civilian court to determine the lawfulness of military detention and trial by military commission.
The rules for the military commissions do provide many other fair trial guarantees not included in the November 13 order, including making the trials public, requiring proof beyond reasonable doubt for conviction, establishing the presumption of innocence, providing access to a defense attorney and permitting the defendant to see the prosecution's evidence and to cross-examine witnesses. While Human Rights Watch opposes capital punishment in all cases, it welcomed the Pentagon's decision to require unanimity before the commission can impose the death penalty.
Human Rights Watch was also concerned about the absence of any period of public comment before the regulations go into affect. The Bush administration rejected such a comment period, citing "the need to move decisively and expeditiously in the ongoing war against terrorism." However, the administration contradicted this assertion by saying that it has no intention of using the trials any time soon.
