Joint Statement of Principles on Presidential Order Authorizing Military Tribunals

December 6, 2001
Joint Statement of Principles on Presidential Order Authorizing Military Tribunals

Statement of Principles
Presidential Order Authorizing Military Tribunals

On November 13, President Bush signed a military order establishing a process of military tribunals for trials of any person other than an American citizen suspected of a terrorist-related offense, whether apprehended in the U.S. or abroad. The order violates the constitutional separation of powers, since the creation of military commissions has not been authorized by the Congress and is outside the President’s constitutional powers.

The order strips away a variety of fundamental checks and balances on governmental power and the reliability and integrity of criminal judgments – safeguards which are present in other available adjudicative processes, whether the U.S. criminal justice system, military courts martial, or international courts. The procedures possible under the President’s order create an unacceptable risk of miscarriage of justice and conviction and execution of the innocent. By its example, the order undermines the rule of law worldwide, and invites reciprocal treatment of U.S. nationals by hostile nations utilizing secret trials, a single entity as prosecutor, judge and jury, no judicial review, and summary executions.

The trial of individuals alleged to have played a major role in the attacks of September 11, at a time when the United States is engaged in open military conflict, presents legitimate security challenges, which must be accommodated in the narrowest possible manner consistent with well-established safeguards guaranteed under the U.S. Constitution and international law, including:

  • Access to counsel of one’s choosing, and a guarantee of the effective assistance of qualified counsel for defendants who cannot afford retained counsel, encompassing confidential communication with counsel, funding for necessary and reasonable expert and investigative services, and adequate time to prepare and present a defense;
  • An independent judicial officer presiding;
  • The right to be informed promptly of the charges, and to be released promptly if not charged or otherwise lawfully detained under established federal or international law;
  • The right to cross-examine witnesses, and to review and meaningfully test the reliability as well as the probative value of the government’s evidence, subject to existing safeguards for specific sensitive information under CIPA or similar procedures, as well as a guarantee of access to exculpatory evidence;
  • Rights against self-incrimination and coerced confessions;
  • A presumption of innocence;
  • Proof beyond a reasonable doubt;
  • Unanimous judgment as to both conviction and sentencing; and
  • Judicial review.
  • Individuals apprehended in the United States must, of course, continue to be tried in civilian courts. If Congress elects to authorize military commissions or to use an existing international tribunal for the trial of terrorism suspects apprehended abroad, the undersigned organizations respectfully recommend that the above principles of due process, at a minimum, be accorded.

    Subscribed to by:
    National Legal Aid and Defender Association
    American Council of Chief Defenders
    Brennan Center for Justice at NYU School of Law
    First Amendment Foundation
    National Committee Against Repressive Legislation
    Citizens Committee on Civil Rights
    Center for Democracy and Technology
    Lawyers Committee for Human Rights
    Freedom of Information Center, MO School of Journalism
    Solidarity USA
    World Organization Against Torture USA
    The Multiracial Activist and Abolitionist Examiner
    Consumer Action
    National Association of Criminal Defense Lawyers

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