Military Order Contradicts Core U.S.
and International Values Says Human Rights First

Statement of Michael Posner, Executive Director

November 15, 2001

Human Rights First calls for the immediate revocation of the President’s November 13 Military Order authorizing military commissions to try terrorists. This Order subverts our democracy and contradicts basic values the U.S. holds as a nation. The military tribunals authorized by the President have no place in a country committed to protecting liberty through the rule of law and separation of powers. The United States stands for these principles internationally, and will be judged by how well it holds to them in this time of crisis. It will be difficult to call on other nations to uphold these values – as we must, in laying the foundation for a stable and pluralist Afghanistan – when we repudiate them ourselves.

President Bush’s Military Order allows trial of any non-citizen suspected of terrorism, inside or outside the United States, whether in connection with Osama Bin Laden and his al-Qaeda network or not. The Order has no termination date. Any non-citizen – even legal permanent residents – could be tried by a military tribunal.

The November 13 Order raises highly disturbing constitutional, legal and policy concerns:

Constitutional and Legal Concerns:

This Military Order:

• Disregards the U.S. Constitution. The Order would permit military trials of non-US citizen civilians that would contravene the Bill of Rights. Military commissions would provide fewer protections from abuse of process than civilian or even ordinary military courts. The Order creates a parallel criminal justice system in which defendants would have only those rights that the President or Secretary of Defense decided they would have.
  
  
• Allows the Executive to sideline the Judiciary and drastically erode due process. Individuals designated by the President for military trial would not be permitted to know or challenge in court the information on which this decision is made. The individual could then be subject to indefinite detention before being tried by military officers in a secret trial in which a conviction could be based on hearsay and other evidence that would not be admissible in a regular court. The accused would have no recourse to the courts, and could appeal a conviction – which may carry the death penalty – only to the President who named him as a terrorist in the first place.
  
  
• Does not ensure conviction of the truly guilty. American democratic process, through the system of checks and balances between the three branches of government, has settled on an adversarial criminal justice system with rules designed not just to protect the innocent, but to ensure conviction of the truly guilty. Opposition to the President's decision to supplant this system with secret tribunals does not require a belief that the Osama Bin Ladens of the world deserve constitutional protections. When the wrong people are convicted – and particularly when they are executed – because due process has been ignored, the result is not just that the innocent suffer. Evildoers go free.
  
  
• Is not based on any demonstrated justification. One would expect an order of this scope, that sweeps away bedrock constitutional principles, to be preceded by a demonstration of why the regular criminal justice system is not equipped to try terrorist criminals. But there has been no such attempt, beyond a blanket assertion of need, to justify this ill-conceived move. To the contrary, those indicted in the attack on the World Trade Center in 1993 and in the Embassy Bombings of 1998 were tried and convicted, and were handed sentences including life imprisonment, by ordinary process of our criminal courts. The tribunals envisioned in the President’s Order are unnecessary.
  
  
• Bypasses U.S. Congressional checks and balances. The Military Order was issued just weeks after Congress gave the Administration sweeping new powers it said it needed to counter terrorism. Debate about that legislation helped arrive at a better balance of liberty and security than the Administration’s initial proposal had suggested. The President’s attempt to create under his power as Commander in Chief a parallel criminal justice system for persons he names as terrorists bears the hallmark of a proposal that would not withstand congressional debate and scrutiny. Congressional voices have rightly begun to protest.
  

POLICY CONCERNS:

The Military Order:

• Sends the wrong message. Far from promoting the rule of law and separation of powers in the name of long-term stability, this Order tells the people of Afghanistan and the Muslim world that the U.S. believes that force, not law, is how wrongs should be settled. This could have long-term consequences in sustaining cultures of violence, and stands in contrast to previous U.S. positions critical of the abuse of military tribunals in countries like Peru and Egypt.
  
  
• Damages U.S. credibility. Regardless of how it was intended, the President’s Order will, if implemented, be seen throughout the Muslim world and elsewhere as creating kangaroo courts set up because the U.S. did not have the evidence to prosecute terrorist suspects in open court with standard procedural protections.
  
  
• Is an Affront to our Allies. A number of countries are actively supporting the United States in its effort to bring to justice those who committed the attacks of September 11, and to prevent future attacks. These allies are part of a solid international consensus that international crimes require concerted international cooperation in their suppression, punishment and prevention. The U.S. appealed to this approach in winning political support for its military campaign, yet now scorns it by imposing the far-reaching, unilateral initiative of the Military Order. The U.S. should be working with its allies, with the United Nations and with nascent forces on the ground in Afghanistan to find the most appropriate mechanisms to do justice in a way that promotes long-term stability and increased respect for the rule of law. The Military Order’s implication that somehow courts and cooperation are not suitable deserves to be roundly condemned.

The Administration has indicated that the President’s Order is intended to be only “one tool in the toolbox.” This is a tool that should never be used. Human Rights First calls on the Bush Administration to revoke immediately the Military Order authorizing the establishment of these military commissions.