Amnesty International USA

BACKGROUND ON HAMDAN V. RUMSFELD

On November 13, 2001, President Bush issued an executive order allowing for trial of “enemy combatants” by military commission. The order was explicit in that it only applied to foreign nationals (1), in violation of fair trials standards (2) . The Commissions were not based on any currently established system of law – instead, the order stated quite clearly that anyone who was tried pursuant to the order would not have the ability to invoke rights under any other body of law, US or international (3). Rather then look to any currently functioning court system – whether it be US civilian court, courts-martial, or an international tribunal – the President instead chose to resurrect a system that had not been used since World War II.

The order was issued is November of 2001 in order to “dispense justice swiftly, close to where our forces may be fighting, without years of pretrial proceedings or post-trial appeals,” (4) according to then White House counsel Alberto Gonzales. However, no one was charged before the tribunal until February of 2004. In addition, the proceedings were set to take place at the Naval Station in Guantanamo Bay, Cuba, thousands of miles away from any battlefield.

Amnesty International expressed concern about the military commissions from the beginning. The first concern was that the commissions lacked any independence – they were created and executed solely by the Executive Branch. The President had the right to identify people for trial, the charges and the rules were written by the Department of Defense, who also selected the panel to hear the cases, and selected the review panel to review any decisions. Finally, the President had final authority to decide the outcome of a case, and had the power to reverse a finding of “not guilty” regardless of what conclusion the review panel had reached.

The commissions were also lacking in several other areas. There was no independent appeal from any conviction by the commissions. Evidence obtained through torture was admissible until March 24, 2006. Evidence obtained by coercion or cruel, inhuman and degrading treatment remained admissible. The accused and his civilian defense counsel could be excluded from any part of the proceedings. Witnesses could testify anonymously, could testify to hearsay evidence, and did not have to be sworn. These are just a few of the numerous problems that Amnesty International identified with the commissions. For more information on Amnesty International’s criticism of the military commissions, see AI’s fact sheet.

Amnesty International has had a legal observer present at all but one of the proceedings before the commissions. Through analysis of the rules and first hand observations, Amnesty International has concluded that the alleged “war crimes” trials being held in Guantanamo did not meet international fair trial standards and were an affront to justice.

Salim Ahmed Hamdan was one of the first four detainees identified for trial by military commission. Just two weeks after meeting his client for the first time, Hamdan’s detailed military defense counsel, Charlie Swift, filed a habeas corpus case challenging his trial by military commission - both the fairness of the proceedings and the president’s power to convene the commissions.

The first pretrial proceedings in Hamdan’s case commenced in August of 2004. During the day long proceedings, Hamdan was excluded from a portion of the proceedings questioning the fitness of the panel members selected to hear the case. Hamdan’s case was scheduled for motions hearings in the second week of November, 2004. However, just one hour into the hearing, a federal court stopped the proceedings. The court ruled that the United States could not try Hamdan by military commission, citing both rights under the Geneva Conventions and the fairness of the proceedings. The military commission proceedings in all four initial cases were stayed pending appeal. (Read Amnesty International’s reaction to the decision.)

In July of 2005, two members of a three judge panel on the federal appeals court, including now Chief Justice Roberts, ruled that the commissions could go forward as currently constructed. In addition, the Court held that the Geneva Conventions did not create judicially enforceable rights, meaning that individuals could not sue to protect their rights under the Geneva Conventions. Since that time the government has charged an additional six men. (Read Amnesty International’s reaction to the decision.)
The Appointing Authority, the convening authority that is in charge of the Office of Military Commissions, lifted the stay on proceedings before the commissions after the July decision. Three of the original four charged, including Hamdan, had their cases stayed by a federal court judge. The government made clear its intention to proceed with the commissions, even though the federal court decision was under appeal.

In December of 2005, Congress passed the Detainee Treatment Act (DTA) which included a provision that would allow a limited right of appeal to federal court for any person convicted by the military commissions. The right to appeal was automatic for a sentence of ten years or more, and discretionary for a sentence of less than ten years. The appeal could only challenge whether the conviction was consistent with the procedures and standards of the PMO, and whether they are consistent with US law and the Constitution, to the extent that they are applicable. (5) The DTA also included a provision that the government argued stripped the Supreme Court of jurisdiction to hear the case. (6)

Six additional detainees were charged before the military commissions. Pretrial proceedings in the cases that were not stayed resumed in February, 2006, and continued intermittently throughout the spring. Oral arguments were heard in the Supreme Court on March 28, 2006. Although many questioned whether it was prudent to continue holding proceedings while the Court was considering the future of the commissions, the government refused to stay the proceedings in the remaining cases. Shortly after two Saudi men and one Yemeni men committed suicide in their cells in Guantanamo, the Appointing Authority issued a stay in all remaining cases.

On June 29, 2006, the Supreme Court issued a sweeping decision that found the commissions as currently constructed to be invalid. The Court held that the President did not have the authority to convene military commissions that deviated so far from established procedures without specific Congressional authorization. In addition, the Court ruled that the commissions must be in line with the due process protections found in the Uniform Code of Military Justice and Common Article 3 of the Geneva Conventions, which prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” (7)

In its ruling, the Court rejected the notion that the DTA would prevent the Court from hearing the case. The Court also found that the limited right to appeal created by the DTA did not satisfy the right to an independent appeal. The Court did not decide on the legality of the ongoing detentions in Guantanamo because that question was not presented to the Court in this case.

President Bush has expressed his desire to work with Congress to authorize the commissions in a way that complies with the Supreme Court’s decision. Amnesty International will continue to insist that any legislation meets the basic fair trials protections required by the Supreme Court and US and International law.

Take action and ask you Senator to ensure fair trials for Guantanamo detainees.

Read more about fair trials standards.

(1) Excerpt from the President's Military Order (PMO) of November 13, 2001:
a. The term "individual subject to this order" shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that:

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(2) Convention to Eliminate all Forms of Discrimination (CERD) Article 5: "In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:
a. The right to equal treatment before the tribunals and all other organs administering justice;"

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(3) Excerpt from PMO:
b. With respect to any individual subject to this order --

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(4) Alberto R. Gonzales, "Martial Justice, Full and Fair," N.Y. TIMES, Nov. 30, 2001, at A27.

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(5) 3. REVIEW OF FINAL DECISIONS OF MILITARY COMMISSIONS-
a. IN GENERAL- Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision rendered pursuant to Military Commission Order No. 1, dated August 31, 2005 (or any successor military order).

b. GRANT OF REVIEW- Review under this paragraph--

d. SCOPE OF REVIEW- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on an appeal of a final decision with respect to an alien under this paragraph shall be limited to the consideration of--

4.RESPONDENT- The Secretary of Defense shall be the named respondent in any appeal to the United States Court of Appeals for the District of Columbia Circuit under this subsection.

f. Construction- Nothing in this section shall be construed to confer any constitutional right on an alien detained as an enemy combatant outside the United States.

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(6) e. Judicial Review of Detention of Enemy Combatants-
1. IN GENERAL- Section 2241 of title 28, United States Code, is amended by adding at the end the following:

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(7) Common Article 3 is the same provision in all four of the Geneva conventions, and is considered to be customary international law as a baseline for the treatment of any detainee. The 9-11 Commission recommended that the US use Common Article 3 as the standard by which detainees are treated.
Article 3: In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions: