U.S.: Military Commissions Changes Are ‘Cosmetic’
Commissions Should Be Scrapped for Regular Courts
(Washington, August 31, 2005) -- The Pentagon’s new changes in the rules governing military commissions at Guantánamo
Bay still fail to ensure fair trials, Human Rights Watch said today.
The U.S. Department of Defense today announced several changes in the military commissions which it claimed would make
the commissions “smoother and more efficient.” Human Rights Watch remained concerned that military commissions will
still function entirely within the military and executive branch, without independent judicial review.
“The new rules are aimed to deflect criticism of the commissions, but fail to address their most fundamental problems,”
said Jamie Fellner, U.S. Program director at Human Rights Watch. “Without review by civilian courts, there is no means
of ensuring that any fair trial rules are in fact respected.”
Under the new rules, classified evidence can be withheld from the accused unless doing so would deny him a “full and
fair trial.” While Human Rights Watch welcomed the Pentagon’s recognition that access to evidence is necessary for a
fair trial, the Pentagon will still remain the arbiter of that evidence. Human Rights Watch said that this change may
mean little so long as there is no judicial review of the proceedings by a civilian court. U.S. courts martial are
reviewed by a civilian appeals court.
Also, the commission’s presiding officer will act more like a judge, ruling on legal issues, while the rest of the panel
will act more like a jury, determining issues of fact. Human Rights Watch said that commission hearings held in 2004—to
which it sent observers—had highlighted serious deficiencies in the U.S. military commission members’ understanding of
the laws of war and basic principles of criminal justice.
Human Rights Watch has long said that the military commissions established by the Bush administration in November 2001
are fatally flawed because they do not meet international standards for fair trials. Under the Defense Department rules,
the military commissions will still deprive the accused of independent judicial oversight by a civilian court and
deprive defense counsel of the means to prepare an effective defense, among other problems.
In addition, the rule changes fail to guarantee that evidence obtained through unlawful coercion shall not be used.
Revelations of torture and other mistreatment by U.S. personnel at Guantánamo Bay and other detention facilities outside
the United States heightens concerns over the use of such information in legal proceedings.
“Those responsible for war crimes should be tried by real courts using real rules, not commissions created from
scratch,” Fellner said.
In November, a federal judge ruled that the commissions violated U.S. obligations under the Geneva Conventions. In July,
a federal appeals court overturned the lower-court ruling. A date for the resumption of the commissions has yet to be
announced.