ACLU Comments on Draft Military Commission Instruction, "Crimes and Elements for Trials by Military Commissions"

William J. Haynes II
General Counsel
Department of Defense
1600 Defense Pentagon
Washington, DC 20301-1600

Re: Comments on Draft Military Commission Instruction, ""Crimes and Elements for Trials by Military Commissions,"" released on February 28, 3003

Dear Mr. Haynes:

On behalf of the American Civil Liberties Union and its 330,000 members, we appreciate this opportunity to share our views and recommendations with you regarding the draft Military Commission Instruction on ""Crimes and Elements for Trials by Military Commission"" (Draft Instruction).

As a preliminary matter, the ACLU would like to reiterate our view that military commissions are unnecessary because the regular criminal courts are an appropriate forum for prosecuting suspected terrorists. The United States must respect basic notions of fairness and due process as a matter of democratic principle and international law. Any perceived abandonment of the right to fair trials would undermine America's longstanding commitment to human rights and civil liberties.

The United States can avoid these problems by honoring its historical commitment to fair trials. The best way to do this is to try suspected terrorists in federal courts with all the attendant due process protections that would entail. This approach has led to successful prosecutions of Al Qaeda and other terrorists in the past and there is no reason why such trials could not be successful in the future.

As we explained in our earlier letters, the Military Order of November 13, 2001 and the Military Commission Order No. 1 of March 21, 2002 contain numerous deficiencies and do not respect fundamental norms of civil liberties and due process. On March 20, 2002, President Bush promised that the military tribunal system would show the world a ""fair system that will enable us to bring people to justice [but] at the same time protect citizenry."" Two days later Secretary Rumsfeld announced that the ""commissions will conduct trials that are fair and impartial."" So far, these promises have not been fulfilled, and the legitimacy of any proceedings involving military commissions will be questioned in our eyes and the eyes of the world.

We also fear that by endorsing the use of military commissions without sufficient due process to try suspected terrorists or others accused of violating the laws of war, we may thereby undermine the principles of military justice that would apply to American soldiers subject to trial by an enemy force or nation or in an international tribunal.

We remain particularly concerned about the constitutionality of using such tribunals against terrorism suspects apprehended in the United States. We are also disappointed that the Draft Instruction continues to ignore the distinction between the armed forces of enemy nations and suspected terrorists who are - particularly if apprehended outside of a battlefield situation - more appropriately viewed as criminal suspects than unlawful enemy combatants.

In addition to these overall concerns, we have a number of specific concerns about a number of deficiencies in the Draft Instruction which, we believe, could add new elements of unfairness to trials conducted by military commissions. Our specific concerns, and recommendations, are detailed below.

Enumerated Crimes

Nullem crimen sine lege (""there is no crime without a law"") is one of the most fundamental principles of national and international law. An individual may only be found criminally liable for conduct that was specifically prohibited by law at the time of its commission. Thus, the law must spell out the proscribed conduct with certainty so that the individual who commits the crime is aware of the wrongfulness of his or her conduct.

The Draft Instruction appears to overlook the existence of this principle of due process. For example, Section 3(C) provides that ""[t]his document does not contain a comprehensive list of crimes triable by military commission."" Moreover, the Draft Instruction indicates that ""[t]he absence of a particular offense from the corpus of those enumerated herein does not preclude trial for that offense."" As a result, individuals could be prosecuted for crimes that are not set forth in the Draft Instruction or otherwise clearly established by international law.

Section 3(A) also raises due process concerns. It provides that ""[t]his document does not preclude trial for crimes that occurred prior to its effective date."" Since the Draft Instruction does not set forth a comprehensive list of crimes triable by military commissions and does not limit the trial of unenumerated crimes to crimes that were clearly established under international law at the time they were committed, individuals could be prosecuted for crimes that did not even exist when they were committed.

By providing implicit authority for a military commission to find new criminal offenses not listed in the Instruction, the Instruction loses its utility as a guide to the prosecution and defense counsel of what elements must be established to convict an accused. It also seriously undermines the fairness of a military commission trial. Without providing a definitive corpus of crimes, the prosecution could be tempted to avoid an embarrassing acquittal by urging a commission to invent a new criminal offense, not listed in the Instruction, that effectively relieves the prosecution of the burden of establishing the elements of one of the crimes that is listed in the Instruction. This concern is aggravated by the procedural deficiencies in earlier orders that permit substantial command influence over the military commissions.

We recognize that the Draft Instruction does not list all offenses that are criminal violations of the law of armed conflict and that are clearly established under international law. For example, it does not define the crimes of genocide or crimes against humanity.

However, rather than provide implicit authority for a commission to define these crimes on its own, the Department of Defense should issue a supplemental instruction that defines any offense not listed in the Instruction for which the prosecution may wish to charge a detainee prior to any decision to list charges against a detainee.

Recommendation #1: At the end of paragraph 3.A of the Draft Instruction, after the word ""effective date,"" add ""provided that the status of such conduct as a criminal violation of the law of armed conflict in international law was clearly established at the time the offense was committed.""

Recommendation #2: Delete paragraph 3.C (""Non-Exclusivity"") and replace with ""An offense may only be tried by a military commission pursuant to this order if the status of such conduct as a criminal violation of the law of armed conflict in international law was clearly established at the time the offense was committed, and if the crime for which the detainee is charged was defined by this Instruction or a supplemental Instruction prior to the time charges were instituted.""

Enumerated Elements

The Draft Instruction set forth 24 separate offenses and 7 other forms of liability. However, the proposed elements for each of these crimes do not act with the restrictive force of law that is required for any legitimate court. Rather, they appear to act only as guidelines that may be added to, subtracted from or completely ignored-thereby granting unfettered discretion to the military commissions.

In addition, the enumerated elements often fail to track the elements of similar offenses already set forth in the United States Code or international law. For example, the offense of "Aiding the Enemy" is defined even more broadly than an identically titled provision in 10 U.S.C. § 904, which itself could not be applied to non-members of the U.S. military. Read literally, the Draft Instruction could apply to a lawful enemy solider who provides assistance to his own side, which, as Human Rights Watch points out in its comments to the Instruction, is not prohibited by the international law of armed conflict.

The more logically applicable law of aiding terrorism, criminalized under 18 USC § 2339, contains safeguards that the Draft Instruction do not, including the important requirement that the defendant have the specific intent to aid a terrorist act, or that the defendant be on notice because the target of the aid has been designated as terrorist organization by the United States government. Consequently, the Draft Instruction could allow the punishment of an individual who unwittingly aids a terrorist organization whereas the United States Code would not. Such inconsistency between existing federal law and the Draft Instruction only adds to the apparent arbitrary and inconsistent nature of these provisions.

Recommendation #3: A new paragraph should be added to section 3 which reads - ""As provided in paragraph 5.C of Military Commission Order No. 1, issued March 21, 2002, the prosecution bears the burden of establishing guilt in all cases tried by a military commission beyond a reasonable doubt. As a result, each element of a criminal offense as described in this Instruction must be proven beyond a reasonable doubt. The commission has no authority to relieve the prosecution of this burden with respect to any offense.""

Recommendation #4: The offense of ""aiding the enemy"" should be deleted. It has no logical application with respect to aiding one's own lawful enemy force. The offense of providing material support to terrorists should be tried in federal criminal courts. In the alternative, the offense should be revised to track the offenses of providing material support to terrorists contained in 18 U.S.C. § 2339A.

Presumption of Guilt

The Draft Instruction requires that any conduct proscribed must be wrongful. Section 4(B) adds, however, that ""[c]onduct alleged to meet the elements found herein shall be inferred to be wrongful in the absence of evidence to the contrary."" Thus, the presumption of guilt shifts to the defendant before proceedings have even commenced. The placement of this burden of proof on the defendant constitutes a violation of the presumption of innocence.

The presumption of innocence is a core concept of due process and fundamental fairness, long recognized in United States law and international law. The International Covenant on Civil and Political Rights, a treaty signed and ratified by the United States, provides that ""[e]veryone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law."" The presumption of innocence is also set forth in the Rome Statute of the International Criminal Court (Rome Statute), which provides that ""[e]veryone shall be presumed innocent until proved guilty [beyond reasonable doubt] before the Court."" Perhaps most pertinent for the Department of Defense, Military Commission Order No. 1 of March 21, 2002, also provides plainly, at section 5(B), that ""[t]he Accused shall be presumed innocent until proven guilty.""

Recommendation #5: The third and fourth sentences of paragraph 4.B (from ""The element of wrongfulness"" through ""evidence to the contrary""), which provide for a general presumption of wrongfulness, should be deleted.

Presumption Against Applicability of Defenses

The unfettered discretion that the Draft Instruction provides to the military commissions may also be seen in the treatment of available defenses. For example, Section 4(B) declines to enunciate defenses that may be raised by a defendant in proceedings before the military commissions. While it acknowledges the existence of defenses, the Draft Instruction provide that ""[i]n the absence of evidence to the contrary, defenses in individual cases shall be presumed not to apply."" This provision not only places the ordinary burden on the accused to going forward with evidence that establishes an affirmative defense, but it also appears to place an unprecedented burden on the accused to overcome the presumption that the defenses do not apply. This apparently requires both a factual and legal showing.

Defenses to criminal liability have long been recognized in domestic and international law. Thus, they should be recognized in the Draft Instruction. For example, the Rome Statute provides for numerous defenses, including the defenses of self-defense, duress, mistake of fact, mistake of law and age. The International Criminal Tribunal for the former Yugoslavia recognizes similar defenses.

Recommendation #6: The seventh sentence of paragraph 4.B, reading ""In the absence of evidence to the contrary, defenses in individual cases shall be presumed not to apply,"" should be deleted.

Statute of Limitations

The Draft Instruction explicitly excludes a statute of limitations for any crimes. Section 4(C) provides that "[v]iolations of the laws of war and other crimes triable by military commissions listed herein are not subject to any statute of limitations." While international law recognizes that the statute of limitations should not apply for certain offenses, it does not provide a blanket exception for all offenses. Indeed, only a small set of heinous crimes are relieved of a statute of limitations under international law. For example, the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity precludes application of the statute of limitations to only to certain war crimes and crimes against humanity.

In contrast, such crimes as unwitting aid (Section 5(B)(21)), spying (Section 5(B)(22)), perjury (Section 5(B)(23)), and obstruction of justice (Section 5(B)(24)) were not included in that waiver. These offenses are also defined by the federal criminal code and do provide for a limitations period except in capital cases. In general, the federal criminal code provides for a limitations period of five years, and eight years for some non-capital terrorism offenses. See 18 U.S.C. § 3282.

The explicit exclusion of a statute of limitations is also troubling given the open-ended nature of the crimes set forth in the Draft Instruction. Since the Draft Instruction does not set forth a comprehensive list of crimes triable by military commissions, individuals could be punished decades from now for crimes that did not even exist when they were committed.

Recommendation #7: Paragraph 3.C should be amended to read as follows: ""Capital offenses or other offenses described herein that are covered by the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity shall not be subject to any statute of limitations. The limitations period for all other offenses is five years."" In the alternative, the Instruction could list a limitations period for each specific offense, providing for no limitation for covered war crimes offenses while providing a specific limitation of either five years for a general offense, such as perjury, or eight years for a terrorism offense.

Additional Concerns

The aforementioned concerns are not exclusive. Significant problems also exist with respect to combatant immunity, the definition of armed conflict, and other provisions pertaining to the laws of war.

Conclusion

We appreciate the enormous task facing the United States in reconciling the need for national security with the demands of the Constitution and international law. We are also convinced that liberty and security need not be at odds.

Fair trials protect the rights of the accused, the interests of the public, and our nation's longstanding commitment to civil liberties and human rights. Our most basic values - and everything we are fighting to protect - demand that we uphold and affirm fundamental rights to all.

Sincerely,

Laura W. Murphy
Director
ACLU Washington National Office

Timothy Edgar
Legislative Counsel
ACLU Washington National Office

Paul Hoffman
National Task Force Coordinator
ACLU International Human Rights Task Force

Prof. William Aceves
Board Member, ACLU of San Diego and Imperial Counties