November 15, 2001

President George W. Bush
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500

Dear President Bush,

We are writing to express our profound concern with the new Executive
Order on the Detention, Treatment, and Trial of Certain Non-Citizens in
the War Against Terrorism, issued on November 13, 2001. We recognize
that the existing state of emergency in the United States permits
certain derogations of internationally protected human rights.
Nevertheless, the broad reach of the executive order sacrifices
fundamental rights to personal liberty and to a fair trial that go far
beyond what is permitted even in times of crisis.

The United States has routinely condemned such gross transgressions of
basic due process rights when committed by other governments because
they violate binding international law to which the U.S. government and
over 140 other governments have subscribed. For example, the United
States has:

?criticized the military courts in Peru that convicted U.S. citizen
Lori Berenson for terrorism without adequate due process; indeed, the
State Department called on Peru to retry the case 밿n open civilian
court with full rights of legal defense, in accordance with
international judicial norms.?

?condemned Nigeria for convicting and executing author and
environmental activist Ken Saro-Wiwa and eight other activists after a
trial before a special military court appointed by the government.

?criticized the manner in which military tribunals are used to try
accused terrorists in Egypt, pointing out in its most recent annual
report on human rights in that country that 뱈ilitary courts do not
ensure civilian defendants?due process before an independent tribunal.

?expressed great concern about trials of foreigners, including
Americans, for espionage before closed tribunals in Russia.

If the Executive Order is implemented, it will do permanent damage to
the United States?ability to champion human rights and the rule of law
around the world. It will undercut the U.S. government뭩 efforts to
protect the rights of U.S. citizens before foreign tribunals. And it
will undermine the human rights standards that you have said are key to
distinguishing terrorism from lawful conduct.

The Executive Order raises important concerns regarding U.S. obligations
under the International Covenant on Civil and Political Rights (ICCPR),
which the U.S. ratified in 1992. Article 4 of the ICCPR does permit a
state to take measures derogating from its obligations under the
Covenant in time of public emergency that threatens the life of the
nation and is officially proclaimed. The U.S. declaration of a national
emergency on September 14 may be considered to have met that condition,
although to our knowledge the required formal notification of the U.N.
Secretary-General has not occurred.

However, a state뭩 ability to derogate from the ICCPR is not unlimited.
Derogation is never permitted from certain rights, such as the right to
be free from torture (article 7) and the prohibition of ex post facto
laws (article 15). Otherwise, a state may derogate from its obligations
under the ICCPR only 뱓o the extent strictly required by the exigencies
of the situation?and provided that such measures are not inconsistent
with its other obligations under international law. The Human Rights
Committee, the international body charged with interpreting the ICCPR
and monitoring compliance with it, states in its General Comment on
article 4 that 밫his condition requires that States parties provide
careful justification not only for their decision to proclaim a state of
emergency but also for any specific measures based on such a
proclamation.?T]hey must be able to justify not only that such a
situation constitutes a threat to the life of the nation, but also that
all their measures derogating from the Covenant are strictly required by
the exigencies of the situation.?

The U.S. must thus meet a high burden to show that the rights
circumscribed under the Executive Order meet the standard for derogating
from rights under the ICCPR. As discussed below, the Executive Order
fails to meet this burden as it sharply curtails the right to liberty
and security of the person under article 9 and the right to a fair trial
under article 14. These rights not only are found in international law
but are central to the fundamental rights of due process in the United
States.

Right to Liberty and Security of Person

Section 2 of the Executive Order permits the arrest and detention of
persons on grounds that are vague and overbroad. It allows taking a
person into custody if the President has 뱑eason to believe?that the
individual took part in 밶cts of international terrorism?against the
United States. Because neither the meaning of 밿nternational terrorism?
nor the nature of proscribed complicity is defined, the Executive Order
is an extreme derogation of the ICCPR article 9 prohibition against
arbitrary arrest and detention. Indeed, given the possibility that these
provisions could be interpreted to proscribe conduct that was not
already criminal, the Executive Order could even run afoul of the
ICCPR뭩 nonderogable prohibition of ex post facto criminal laws.

In addition, Section 3 of the Executive Order risks rendering ICCPR
article 9 effectively meaningless by providing for conditions of
detention that are distinct from those under existing U.S. law. Most
significant are not the protections afforded detainees ?including
humane treatment, adequate food and water, access to health care ?but
those fundamental protections left off the list. There is no
requirement, for example, that persons detained under the Executive
Order be told the reason for their arrest or be promptly informed of
charges against them; that persons deprived of their liberty be brought
before a judicial authority who can decide on the lawfulness of their
detention; or that those unlawfully arrested or detained shall have an
enforceable right to compensation. Effectively the Executive Order
allows for the arrest and indefinite detention of persons without charge
and without legal recourse should they be unlawfully held. This is a
clear abrogation of the fundamental right to liberty and security of
person, well beyond the derogation permitted under article 4 of the
ICCPR.

Right to a Fair Trial

Human Rights Watch believes the open-ended provisions for the trial of
persons under the Executive Order also exceed the limits of acceptable
derogation of the right to a fair trial under international law.
Although the mere establishment of a military commission and various
procedures set out in the Executive Order are not necessarily in
violation of international law, the absence of key provisions regarding
certain fundamental rights is a basis for extreme concern.

Section 4 of the Executive Order states that at a minimum all trials
shall be 밼ull and fair,?but leaves the specifics open to future orders
and regulations. For instance, there are no provisions for determining
whether and to what extent trials should be public, nor even a
requirement that judgments be made public. There is no requirement of a
presumption of innocence, or that defendants have access to the evidence
submitted against them, or even that proof of guilt be established
beyond a reasonable doubt. It is left undetermined to what extent
defendants will have access to legal counsel of their choosing, whether
they will be able to communicate with counsel, and whether adequate time
and facilities will be provided for a defense. No protection is
provided against forced confessions.

Section 7 of the Executive Order states that a terrorist suspect 뱒hall
not be privileged to seek any remedy or maintain any proceeding,
directly or indirectly, or to have any such remedy or proceeding sought
on the individual's behalf?before a U.S. or any other court. Indeed,
there is not even a provision for appellate review by a separate
military commission panel, only non-judicial review by the President or
the Secretary of Defense as the President뭩 designate. This denies the
defendant the right to an appeal provided under international law, which
is especially troubling because the Executive Order expressly
contemplates military commissions handing down death sentences. It
also denies the right to effective redress to all persons, including
U.S. citizens, who might be affected adversely by the law.

The comments made yesterday by Attorney General Ashcroft do nothing to
correct these severe deficiencies. He claimed that because the
terrorists responsible for the September 11th attacks committed war
crimes, they 밺o not deserve the protection of the American
Constitution.? But the U.S. government has repeatedly argued that
people accused of war crimes deserve full due process protection. That
is certainly the case for U.S. soldiers who might be accused of war
crimes by foreign courts, and it has even been true of alleged war
criminals in Bosnia and Rwanda. The United States cannot credibly
insist on due process when others are the victims if it refuses to
accord the same due process when Americans are the victims.

Human Rights Watch believes the Executive Order is contrary to
fundamental principles of human rights. While the rights in question
may be derogated from in times of emergency, the U.S. must show that
this is being done only to the extent strictly required by the
exigencies of the situation. The far-reaching and ambiguous reach of
the Executive Order strongly indicates that this is not the case. It is
hard to imagine such a military commission escaping criticism by the
U.S. government if created by another government. It is wrong and
unlawful for the U.S. government to arrogate to itself the power to
transgress these well established protections of international human
rights law.

We urge you to rescind the Executive Order. Should any derogation from
the rights provided under the ICCPR prove necessary, it should be done
in a manner consistent with the strict requirements of international
law.

Sincerely,

/s/

Kenneth Roth
Executive Director

cc: Vice President Richard Cheney
The Honorable Colin Powell, Secretary of State
The Honorable Donald Rumsfeld, Secretary of Defense
The Honorable John Ashcroft, Attorney General
The Honorable Condoleezza Rice, Assistant to the President for National
Security Affairs