FROM JOHN WALKER TO OSAMA BIN LADEN: A RANGE OF JUDICIAL OPTIONS WILL SERVE U.S. INTERESTS BEST Rights Group Outlines Judicial Options for Specific Types of Likely Cases The capture of an American among Taliban fighters has added fuel to the debate about how and where the U.S. could – and should – try the wide range of suspects in the September 11th attacks and those who have committed crimes in the armed conflict in Afghanistan. Perpetrators of serious crimes must be brought to justice. However, core values of due process can and should be upheld at the same time. The President’s Order on military commissions fails this test. It also lacks international legitimacy and undermines the ability of the U.S. to protest when other countries create military or secret courts that violate basic human rights. Much debate has focused on the logistical and practical problems of trying Osama bin Laden and others accused of direct involvement in the Sept. 11 attacks in a U.S. federal court.  Much of this is liable to be moot – it is unlikely that bin Laden will be captured alive or that many suspects directly connected to Sept. 11 will be found in Afghanistan. The focus on bin Laden has prevented the Administration from exploring other judicial forums that could better serve U.S. interests in a range of cases. Crimes against the U.S. must be distinguished from war crimes or crimes against humanity committed in Afghanistan and also from simple participation in the Afghan conflict. International experience in Kosovo and Sierra Leone offers some useful guidance. In the spirit of Attorney General John Ashcroft’s statement Thursday that there is a need for an honest, reasoned debate about these issues, Human Rights First has compiled some of the types of cases that are likely to arise and the options for seeking justice in those cases. LIKELY SCENARIOS: The following scenarios deal only with the forum in which justice could be done; international standards of fairness would have to apply in every case. 1.      Cases like ZACARIAS MOUSSAOUI Non-U.S. citizen suspected of planning or committing serious crimes, apprehended in U.S. This case should be tried in U.S. criminal courts; U.S. federal courts have successfully prosecuted similar cases such as that against perpetrators of the 1993 World Trade Center bombing.  Some have mentioned concerns about secrecy and endangering national security in such cases, but classified information is already protected from disclosure in civilian trials by the Classified Information Procedures Act. If the person was apprehended in connection with the Sept. 11 attacks – or was conspiring to commit attacks connected to the present conflict – some would rely on Quirin (German saboteur case) to support the jurisdiction of a military commission. An international tribunal could also, in principle, have jurisdiction.Human Rights First believes that individuals apprehended within the U.S. should be prosecutedin U.S. criminal courts.  These courts should be used for both citizens and non-citizens. This wouldalso make for consistent practice, as a military commission will have no jurisdiction over crimes before the start of the present armed conflict (that is, September 11). 2.      Case like MALEK MOHAMED SEIF (currently on a hunger strike in Phoenix) Non-U.S. citizen, living in the U.S., accused of providing assistance to an al-Qaeda member A person can be held to account in U.S. courts for aiding and abetting, among other things, when the person knowingly provides financial or practical support to someone committing or conspiring to commit a serious crime. The Military Order is vaguely worded and may include as little as renting a hotel room or loaning a car or money. It is not clear that the “laws of war” applicable under the Order give any means of prosecuting such individuals. Where good evidence of aiding and abetting a recognized crime is available, Human Rights First believes regular U.S. courts are the only appropriate venue for trying people detained in the United States. 3.      A case like the AL-QAEDA SUSPECT ARRESTED IN SPAIN  Non-U.S. citizen, suspected al-Qaeda member, accused of serious crimes, apprehended in Europe Europeans could try such individuals in their own courts, transfer them to trial in a U.S. criminal court or transfer them to an international tribunal. European governments are legally obligated not to extradite a suspect to proceedings where the death penalty will be sought, and may refuse to extradite where a fair trial cannot be assured (as before a military commission).  A Spanish magistrate has already taken this position. 4.      AL-QAEDA SUSPECT apprehended in Afghanistan Non-U.S.-citizen associated with al-Qaeda, with proof of connection to Sept. 11 Whether this person were accused of being a high-level planner or a lower-level perpetrator, he could be tried before an international tribunal (for crimes against humanity or war crimes), before U.S. criminal courts, or a military commission. 5.      A TALIBAN SOLDIER WHO CAPTURED, DISARMED AND THEN SHOT A NORTHERN ALLIANCE SOLDIER A suspected war criminal involved in the Afghanistan conflict Such a case (and there may be many like it on both sides of the present conflict) could be tried as a war crime in an international tribunal or U.S. military commission. 6.      A case such as JOHN WALKER LINDH U.S. citizen, apprehended in Afghanistan fighting for al-Qaeda or Taliban A case such as this is not covered by President Bush’s Military Order since the individual is a U.S. citizen.  If the individual did nothing more than take up arms, and there is no proof of war crimes, no international tribunal or U.S. forum could prosecute for violations of the laws of war.  U.S. law may possibly allow trial in U.S. civilian courts or courts martial for treason or seditious conspiracy.  7.      John Walker’s hypothetical CELLMATE Non-U.S. citizen, apprehended fighting in Afghanistan for al-Qaeda or Taliban  While this individual, as a non-citizen, could be subject to the President’s Military Order, the laws of war do not provide for concepts of “organized criminal conspiracy” such as those found under U.S. RICO laws – simple “membership” in al-Qaeda (which might be hard to prove) is therefore not enough to prosecute before a military commission. Without proof of war crimes – killing unarmed prisoners of war, targeting civilians, rape – such an individual could not be prosecuted for violations of the laws of war by an international tribunal, a U.S. court or U.S. military commission.  ACCOUNTABILITY OPTIONS The ‘scenarios’ above illustrate that there are several mutually-reinforcing options available for holding individuals to account.  For suspects in the U.S. or extradited to the U.S. §         Suspects in or extradited to U.S. from Europe and elsewhere should be tried in U.S. courts.  In recent years, the U.S. federal courts have successfully prosecuted similar cases and obtained key information that has helped U.S. law enforcement efforts. Even if military commission trials (with acceptable due process standards) are allowed for individuals connected to the events of Sept. 11 or crimes associated with the present armed conflict, unrelated crimes, and crimes before and after, should be tried in civilian courts. For al Qaeda or Taliban suspects outside the U.S. ·        A Special Chamber of an Afghan/UN interim or transitional administration.  The international community can draw on experience in establishing transitional justice systems in countries such as Kosovo and Sierra Leone. A special chamber for trying al-Qaeda and Taliban crimes could play an important role as part of the long-term effort to establish the rule of law in Afghanistan. §         Build on existing international criminal tribunals to try al Qaeda or Taliban suspects.  This option could be accomplished by setting up an International Criminal Tribunal on the model of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda. The new tribunal could be built upon the existing structure of the ad hoc tribunals: a trial chamber and prosecutor’s office would be established in the Middle East or in South or Central Asia, and the appeals would go to the Appeals Chamber in The Hague where a supervising prosecutor would also be based. Such a tribunal could be used for those accused of war crimes and crimes against humanity in the course of the conflict, as well as individuals associated with Sept. 11, who were not tried in U.S. courts. Such a tribunal would lessen the burden on the U.S., enhance international legitimacy and ease cooperation from other countries. §         U.S. military commissions. Military commissions are not appropriate for trying criminal conspiracies or crimes related to events before, after or unrelated to the armed conflict. While available for recognized violations of the laws of war (war crimes) committed in armed conflict (provided basic standards of due process are met), the military commissions may be less useful than some currently suppose, and should be supplemented by civilian courts or an international tribunal. §         A Lockerbie-type Tribunal.  The tribunal that tried suspects in the Pan Am 103 bombing over Lockerbie, Scotland was a Scottish court applying Scottish law while sitting in the ‘neutral third Country’ of the Netherlands. While offering due process protections closer to regular criminal courts, such a tribunal would not have the added legitimacy of an international tribunal.  §         Foreign Courts.  Where the U.S. chooses not to assure countries that have detained suspects associated with al Qaeda attacks that it will not seek the death penalty or try the individual before its regular criminal courts (thus preventing extradition), the U.S. could work with the other country in building the case for trial before its own courts (for example, in Spain). If an international tribunal existed, the person could also be transferred for trial before it.

Back to Media Alerts Menu | Human Rights First Home