American Arab Anti Discrimination Committee

17 January 2002

ADC Joins Ten Organizations in Letter to DOD

The American-Arab Anti-Discrimination Committee (ADC) recently joined ten civil rights organizations in sending a joint letter to the United States Department of Defense (DOD) concerning rules for the proposed military commissions. The following is the text of the letter:

VIA FACSIMILE

January 14, 2001

The Honorable Donald Rumsfeld
Secretary of Defense
The Pentagon
Washington, DC 20301

Dear Secretary Rumsfeld:

We understand from press reports that the Department is considering incorporating various safeguards in the rules for military commissions, which would go a substantial way towards meeting constitutional and international legal requirements of procedural fairness and due process, including:

Public trials;
The right of the accused to confront the evidence against him;
Effective assistance of counsel, including the right to counsel of one’s choosing;
A presumption of innocence;
A requirement that guilt be established beyond reasonable doubt; and
Unanimous verdict in any capital case.

The press reports did not indicate whether several other equally important due process safeguards have been or will be addressed. These safeguards, which have been spelled out in greater detail in previous correspondence and statements from our various organizations, include:

Provision of an independent and impartial tribunal, free of command influence;
The opportunity for an appeal to a civilian tribunal that is competent, independent and impartial; and
The right to habeas corpus proceedings or other court review of the lawfulness of the detention and the commission’s jurisdiction.

Such appellate and court reviews should be final and binding. According the President or any other executive officer the ultimate authority to override an acquittal or impose a heavier sentence than approved by the appellate tribunal would vitiate all other due process protections.

Commission Jurisdiction.

As many of us have written, we believe that jurisdiction of any commissions must be limited to persons captured overseas, who are both engaged in armed conflict against the United States and charged with war crimes targeted against Americans. Individuals charged with terrorism offenses under U.S. criminal laws, if those crimes do not also constitute war crimes, must be tried in U.S. courts rather than by military commissions.

Opportunity for Comment.

We urge the Department to publish its proposed procedures in draft form and to seek public comment before adopting final rules. The public interest in a transparent rulemaking process is particularly critical with regard to these commissions, which could have extensive and long- lasting ramifications both domestically and internationally. The final rules and the perceived fairness and integrity of the commissions, can only benefit from an open process of public notice and comment on specific rule language. The comment period could be short enough to enable the rules to be finalized quickly.

Including these basic guarantees in the provisions for military commissions is necessary to meet constitutional requirements and international legal commitments. We welcome the apparent determination of the Department to ensure that trials by military commission reflect high standards of justice. Doing so will help the United States bring those responsible for the September 11th attacks to justice while preserving the legitimacy of the verdicts both in law and in the eyes of the world.

Sincerely,
American Friends Service Committee, Washington Office
American-Arab Anti-Discrimination Committee
Center for Democracy and Technology
Center for National Security Studies
Lawyers Committee for Human Rights
National Association of Criminal Defense Lawyers
National Legal Aid and Defender Association
Research and Policy Reform Center, Inc.
Open Society Institute
World Organization Against Torture USA

cc:
The Honorable William J. Haynes II
The Honorable Colin Powell
The Honorable John Ashcroft
The Honorable Condoleezza Rice