Human Rights First has serious concerns about the expanded use of military jurisdiction authorized by the President's Order. By putting jurisdiction over those connected to "terrorist activities" into a military justice system, the order circumvents the Bill of Rights and the jurisdiction of United States criminal courts. The burden is on the Administration to establish that ordinary courts are not suitable in this situation. Yet the prosecution of the previous attempt on the World Trade Center in 1993, and of the Embassy bombings of 1998, have shown - WHAT CONCRETELY?.  

There are many due process concerns are many. The Order appears to allow for indefinite detention, for a standard of proof below that of 'beyond a reasonable doubt', for a restriction of the defendant's right to challenge the evidence against him or her, for trials held in secret, and more. Some shortcomings may be avoided in the detailed regulations to be published by the Department of Defense, and Human Rights First would expect them to be. But it is inevitable that more flexible procedural standards will be used (which indeed is one of the impetuses behind the Order). Given in particular the availability of the death penalty, and the volatile political environment in which any military commission would operate, these concerns require the most diligent attention. 

Military tribunals are normally charged with maintaining discipline within the military and with prosecuting military personnel for conduct in violation of the international laws of war. Some Al Qaeda members and top leadership might be argued to fall within this area. But the majority of those potentially covered by the Order would better fall within ordinary criminal jurisdictions where counter-terrorist laws, concepts of conspiracy, organized criminal enterprise and relevant forms of criminal participation are available. These, rather than the laws of war, appear to provide the better tools here. More than this, by providing military jurisdiction over criminal conspiracies, the US is setting a precedent that could hinder our ability to address human rights abuses in other countries. When military courts have exercised broad jurisdiction over civilians in other countries (as has happened in Peru, Columbia and Egypt [? Check]), human rights organizations and the State Department itself, in its annual reports [? Check], have strongly objected. 

Human Rights First is mindful that this Order takes its place amidst an international military and diplomatic campaign aimed at Al Qaeda and the Taliban. But in this context--where the establishment of a foundation for the rule of law and pluralism, both in Afghanistan and the wider region, should be at the center of our policy--it is imperative that the U.S. conduct itself by the highest standards. It should also seek to engage our allies, any Afghan administration, and the UN as much as possible in establishing order and redressing the abuses of the past."