The UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, said in a press statement, that The Military Commissions Act (MCA) violates the international obligations of the United States under human rights laws in several areas, including the right to challenge detention and to see exculpatory evidence.
As EarthRights International detailed in its 2005 report, Shock and Law: George W. Bush’s Attack on Law and Universal Human Rights, the detention facility in Guantanamo Bay, Cuba, is a “legal black hole” and a “lawless environment” where the Bush Administration refuses to follow either the U.S. Constitution or international law such as the Geneva Conventions. Without any authorization from Congress, Bush has decreed that certain prisoners accused of crimes be tried by special military commissions. These “special tribunals” do not include many of the well-recognized basic procedural protections, including the right to be present at trial and the right to view evidence offered against the accused; they also potentially allow the admission of evidence obtained through the use of torture.
We further highlighted the Bush Administration’s illegal use of military tribunals when we wrote about the Supreme Court’s decision in Hamdan v. Rumsfeld, where a majority of the Court declared illegal President Bush’s use of military tribunals. We had hoped that this would be a positive first step in bringing the Bush administration back into compliance with constitutional and international law.
However, in the wake of the Supreme Court’s decision, the Bush Administration enacted The United States Military Commissions Act on October 17, 2006. Unfortunately, the Act provides for controversial practices relating to the US government’s detention and treatment of alien unlawful combatants.
After reviewing the MCA, the UN Special Rapporteur stated that, “A number of provisions of the MCA appear to contradict the universal and fundamental principles of fair trial standards and due process enshrined in Common Article 3 of the Geneva Conventions.” “One of the most serious aspects of this legislation is the power of the President to declare anyone, including US citizens, without charge as an “unlawful enemy combatant,” a term unknown in international humanitarian law, resulting in these detainees being subject to the jurisdiction of a military commission composed of commissioned military officers,” he said. At the same time, the material scope of crimes to be tried by these commissions is much broader than war crimes in the meaning of the Geneva Conventions, he noted.
An added concern is that some Governments may view certain aspects of this legislation as an example to be followed in respect of their national counter-terrorism legislation, since the US has taken a lead role on countering terrorism since the 11 September 2001 terrorist attacks on New York and Washington, he stressed.
Mr. Scheinin said that he would like to visit the United States to discuss this and other rights concerns such as the Patriot Act, immigration laws and policies, secret detention centres, rendition flights (to countries where detainees might face torture), breaches of non-refoulement (deportation) and the Government’s denial of extra-territorial human rights obligations.
Last month, five other UN human rights rapporteurs rejected US denials that people were tortured at the Guantanamo detention centre and reiterated calls that it be closed down. This was in addition and subsequent to the United Nations Report released in February 2006 in which UN experts identified gross human rights violations at Guantánamo.