[The National Legal Aid and Defender Association (s.wallace_at_nlada.org)
reportedly is looking for groups to sign on to this letter by next
Wednesday. --Declan]
********
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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Received on Dec 08 2001
Intro
