THE
MAGNUS HIRSCHFELD CENTRE FOR HUMAN RIGHTS
Crosswicks
House
Post
Office Box 1974
Bloomfield,
New Jersey USA 07003-1974
Telephone/Facsimile:
(973) 776-3901, Ext. 8684
E-Mail:
Crosswix@hotmail.com
Internet:
www.come.to/humanrights
December 1, 2001
To the Members of the New Jersey
Delegation of the
United States Senate and the United
States House of Representatives
Dear Senators and Representatives:
President George W. Bush signed an
Executive Military Order on November 13th, 2001,which allows for
non-US citizens suspected of involvement in 'international terrorism' to be
tried by special military commissions, operating in secret, and with the power
to pass death sentences, under drastically reduced evidentiary standards, and
without any avenue of appeal to a regularly constituted judicial body.
The Military Order casts
a wide net, covering any foreign national whom the President determines has
'engaged in, aided or abetted, or conspired to commit, acts of international
terrorism' detrimental to the USA, or 'knowingly harbored' such an individual.
The Order flouts the principle
that the powers of the executive should be separate from those of the
judiciary: it gives unfettered and unchallengeable discretionary power to Mr.
Bush and other members of the executive branch to decide who will be
prosecuted, and to determine the rules of evidence and proof that will apply.
After he signed the foregoing executive order mandating the use of
military tribunals in purportedly “terrorist” cases Mr. Bush insisted he alone
or his personal designees should be empowered to decide who goes before such a
military “court,: his staff last week informed the news publication “Newsweek.”
The Executive Order gives the government the power to try,
sentence, and even execute suspected foreign terrorists in secrecy, under
special rules that would deny them constitutional rights and allow no chance to
appeal, and under radically reduced evidentiary standards that permit
conviction based upon a “preponderance of evidence” rather than the “beyond a
reasonable doubt” standard invariably applied in criminal processes. Mr. Bush's powers to form a military court arose
out of a confidential legal memorandum, which the U.S. Justice Department began
drafting in the days after September 11th, according to Newsweek. Mr. Bush
would reportedly use his expanded powers to form a military court for captured
terrorists, and officials envision holding the trials on aircraft carriers or
desert islands, according to a report filed by Newsweek’s correspondent Michael
Isikoff and Editor Stuart Taylor Jr. in the November 26 issue of the
publication. The concept of a system of secret military tribunals was first
presented by William Barr, attorney general under the first President Bush, as
a way to handle the terrorists responsible for the 1988 bombing of Pan Am 103
over Lockerbie, Scotland. The idea was
not implemented then. But Mr. Barr presented it to leading White House
officials in the days after September 11th and this time found support for the
concept.
In anticipation of an
implementing of the foregoing order, the actions taken by Mr. Bush and Attorney
General John Ashcroft in secretly detaining untold numbers of individuals have
been widely condemned by legal authorities and scholars in the field of
international law as "a constitutional coup d'etat" which may lead to
a police state-like security apparatus in which everyone’s – citizens and
non-citizens alike – would be under uninterrupted threat.
While most if not all of
the present detainees are Arab ethnics, experts warn that tomorrow's detainees
could be blond, blue-eyed “dissidents.”
Since September 11th, we
have seen one blow against the Constitution after another, Recently, we've had
Mr. Ashcroft saying that he had, unilaterally, instituted monitoring of
attorney-client communications without informing anyone, in or out of the
government or the judiciary, despite the Fourth Amendment ban on unreasonable
searches and seizures without warrant and the Sixth Amendment right to
representation by counsel.
The criminal investigation into the attacks, the largest in U.S. history, has
netted about 1,200 detainees. But the Justice Department has failed to build a
case against a single prime U.S. suspect in the terrorist attacks. Nine weeks after the September 11th
terrorist attacks, federal authorities admitted on November 15th that they had
found no evidence indicating that any of the roughly 1,200 people detained in
the United States played any role whatsoever in the suicide hijacking plot.
Notwithstanding this, numerous legal protections, based on constitutional and
international treaties, appear to have been ignored or violated in the case of
the 1,200 detainees.
The American public does not know where these individuals are or the conditions
under which they are being held. The
American public does not know whether these individuals have access to
attorneys. We do know one of them died,
under highly suspicious circumstances, while in custody.
There have been reports
that he was tortured to death: here, in the United States, by Americans, most
likely acting on orders from other Americans.
This is unacceptable:
morally, politically and legally unacceptable.
The Constitution protects aliens in the United States: clearly aliens here are
entitled to the protections of the due process clause of the Fifth Amendment ,
as well as to the Article III (Section 2, Clause 3) basic constitutional rights
in criminal cases, including indictment, trial before a federal district judge
or jury, and rights relating to venue, amongst others. The foreign detainees
are also protected by international law under treaties, including the International
Covenant on Civil and Political Rights and
the Vienna Convention on Consular Relations (VCCR).
The International Covenant on Civil and Political Rights, to which the United
States government is a party, affords basic due process protections to everyone
here in the United States, irrespective of their citizenship.
The VCCR of 1963 calls for notification "without delay" of consular
officials when one of their nationals has been arrested or "detained in
any other manner."Although Egypt, Pakistan, Syria, and Saudi Arabia are
party to the VCCR along with the United States, the Justice Department told AFP
that it is using an abbreviated list of nations, the Mandatory Notification
Countries, which includes only one Middle Eastern nation, Kuwait. It is now reported that the Justice
Department is planning to "round up" and question some 5,000 persons,
mostly from Middle Eastern countries, who entered the U.S. legally within the
past two years.
This is also completely
unacceptable, for a variety of good reasons.
It is also dangerous to Americans’ physical safety and integrity, and
the safety and security of our country for another reason. In connection with the executive order calling for military tribunals to try alleged
al Qaeda members, or even former al Qaeda members, in Afghanistan, there is an
even more serious problem."
The third and fourth Geneva Conventions of 1949 clearly apply to the United
States conflict with Afghanistan. These
alleged al Qaeda members would be protected either by the third Geneva
Convention, if they are fighters incorporated into the army there in
Afghanistan, or by the fourth Geneva Convention, if they are deemed to be
civilians. Both conventions have very extensive procedural protections on
trials that must be adhered to.
Although a trial can be held, there are extensive rules and protections and
basic requirements of due process of law, set forth in these treaties that must
be applied. Failures to apply these treaties would constitute war crimes.
The executive order calling for secret military tribunals is extremely
dangerous because it invites reprisals by the Taliban. What it is basically saying to the Taliban
government and to the al Qaeda organization is, 'the United States is not going
to give you the protections of either the third or fourth Geneva Conventions'
guarantees on trials. What that means
is that they could engage in reprisals against captured members of the United
States Armed Forces. Briefly, it opens
up members of our own armed forces to be denied prisoner-of-war status, and
treatment legally based on that status.
The United States government
appears set to expose its military (and civilian, for that matter) personnel to
a similar type of treatment, which would be a summary trial, in secret, subject
to the death penalty." Furthermore, the existence of the order impairs the
ability of our allies in the struggle against terrorism to cooperate fully with
United States’ efforts: detainees held in connection with the September 11th
events include 'more than 100 in Europe, more than 100 in the Near East, 30 in
Latin America and 20 in Africa'. On 23 November, the government of Spain stated
officially that itwould refuse to extradite eight alleged Al-Qa'ida members to
the USA while there was a risk that they would face the death penalty or be
tried by the special military commissions
The Magnus Hirschfeld Centre for Human Rights, its friends and coworkers
condemn in the strongest terms and most unqualified fashion the atrocities
perpetrated in New York and Washington this past September, and has called for
anyone involved to be brought to justice in accordance with internationally
recognized standards. In ignoring such international standards, (which provide
that certain fundamental principles must be respected at all times, even in
time of emergency, including the right of appeal. Of attorney-client
confidentiality and of appropriate evidentiary standards) which the United
States has voluntarily chosen to make itself subject to, the Executive Military
Order contravenes US obligations under international law, specifically the
International Covenant on Civil and Political Rights, ratified by the USA in
1992, the Charter of the United Nations, the Charter of the Organization of
American States and the Inter-American Declaration on the rights & Duties
of Man.
The Hirschfeld Centre calls for
suspects in US custody to be given a fair and public trial, before an impartial
court, without recourse to the death penalty.
The Centre opposes any person being tried before the special military
commissions proposed in the Executive Military Order of November 13th, and
would oppose the sending by any other country of anyone to face the death
penalty or trial before such tribunals.
The Hirschfeld Centre further calls
for the Executive Military Order of November 13th to be immediately
revoked, on the grounds that it violates international legal obligations of the
United States under both customary and treaty law and that it bypasses
fundamental principles of justice, including the right of appeal to a higher
court, the right to attorney-client confidentiality, and the right to
appropriate evidentiary standards, rights which cannot be lawfully suspended
even in time of emergency;
Lastly,
the Centre calls for the immediate release of information by United States
authorities of the names and locations of individuals detained, for a guarantee
by the United States government of their humane treatment, and for the allowing
of access to the foregoing detainees by accredited representatives of the
International Committee of the Red Cross. Several days ago, the Attorney General challenged human rights
advocacy organizations to bring forward evidence demonstrating that detainees'
civil rights are being violated. That challenge is misdirected, as the burden
lies with the government to lift the veil of secrecy and demonstrate that it is
protecting such rights. While some
information may be privileged on security or privacy grounds, the extraordinary
lack of data does not appear to be justified or in the public interest. Without
such data, it is impossible to assess how far the rights of those detained are
being protected (or otherwise); the true extent of any abuses reported; whether
or not there has been any practice of incommunicado detention or torture on a
systematic level; and whether or how effectively the authorities are dealing
with such concerns.
Your
promptest possible response to this communication is respectfully requested.
Sincerely yours,
William A. Courson, FLLA
Executive Director
The Magnus Hirschfeld Centre for
Human Rights
cc:
The Hon. George W. Bush
The White House, Office of the President
1600 Pennsylvania Avenue
Washington DC 20500
Via facsimile: 1 202 456 2461
The Hon. Colin Powell
United States Secretary of State
2201 C Street, N.W.
Washington DC 20520
Via facsimile:1 202 261 8577
The Hon. Donald Rumsfeld
United States Secretary of Defense,
The White House
Washington DC 20310
Fax: 1 703 697 9080
The Hon. John Ashcroft
Attorney General
Department of Justice,
950 Pennsylvania Avenue, N.W.
Washington DC 20530
Via facsimile 1 202 307 6777