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Guantanamo Bay Fair Trial Manual for U.S. Military Commissions

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Guantanamo Bay Fair Trial Manual for U.S. Military Commissions [14 November 2014, 2:30 a.m] Guantanamo Bay Fair Trial Manual www.GitmoObserver.com Page 1 of 282 Guantanamo Bay Fair Trial Manual for U.S. Military Commissions An Independent & Objective Guide for Assessing Human Rights Protections and Interests of the Prosecution, the Defense, Victims and Victims’ Families, Witnesses, the Press, the Court, JTF-GTMO Detention Personnel, NGO Observers and Other Military Commission Stakeholders by The Gitmo Observer* (George E. Edwards, Principal Author) 14 November 2014 (Draft of 2:30 a.m.) * “The Gitmo Observer” is the name given to the U.S. Military Commission Observation Project (MCOP) of the Program in International Human Rights Law (PIHRL) of Indiana University Robert H. McKinney School of Law. The Gitmo Observer / MCOP was founded by Professor George Edwards, who is Special Assistant to the Dean for Inter-Governmental and Non-Governmental Organizations and is The C.M. Gray Professor of Law at the IU McKinney School of Law. Professor Edwards is also Faculty Director (Founding) of the Indiana University McKinney Law School’s Program in International Human Rights Law. Not to be Quoted or Reproduced Without Permission --- This is a Draft. © 2014 E-mail - [email protected] GitmoObserver The Gitmo Observer (of Indiana University McKinney School of Law) Page 2 of 282 Guantanamo Bay Fair Trial Manual www.GitmoObserver.com [12 November 2014, 2:30 a.m.] “Before I discuss the particulars of evidence, some general considerations which may affect the credit of this trial in the eyes of the world should be candidly faced. There is a dramatic disparity between the circumstances of the accusers and of the defendant that might discredit our work if we should falter, in even minor matters, in being fair and temperate . We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this Trial will commend itself to posterity as fulfilling humanity’s aspirations to do justice.” Mr. Justice Robert H. Jackson Chief Prosecutor, International Military Tribunal, Nuremberg 21 November 1945 (Reprinted in II TRIAL OF THE MAJOR WAR CRIMINAL BEFORE THE INTERNATIONAL MILITARY TRIBUNAL: NUREMBERG, 14 NOVEMBER 1945 – 1 OCTOBER 1946, Second Day, Wednesday, 21 November 1945, Part 04, Morning Session, at page 101 (published at Nuremberg, 1947)). Not to be Quoted or Reproduced Without Permission --- This is a Draft. © 2014 E-mail - [email protected] GitmoObserver The Gitmo Observer (of Indiana University McKinney School of Law) [14 November 2014, 2:30 a.m] Guantanamo Bay Fair Trial Manual www.GitmoObserver.com Page 3 of 282 Guantanamo Bay Fair Trial Manual for U.S. Military Commissions An Independent & Objective Guide for Assessing Human Rights Protections and Interests of the Prosecution, the Defense, Victims and Victims’ Families, Witnesses, the Press, the Court, JTF-GTMO Detention Personnel, NGO Observers and Other Military Commission Stakeholders By: The Gitmo Observer (George E. Edwards, Principal Author) Table of Contents (Draft) Preface…………………………………………………………………………….…………………..7 How to Use this Guantanamo Bay Fair Trial Manual…………………………..……….……….11 Acknowledgements………………………………………………………………………………….15 Abbreviations……………………………………………………………………….…………..…..17 I. What is the Right to a Fair Trial?....................................................................................................19 a. Briefing on this chapter of the Guantanamo Bay Fair Trial Manual…………………...……19 b. Who are the Military Commission stakeholders? Who is entitled to a fair trial?............19 c. International law as binding source in US Courts (including the Military Commissions)………………………………………………………………………………19 d. Substantive areas of law binding on the U.S…………………………………………….20 e. International Humanitarian Law as a source of law for fair trials……………………...21 f. International Human Rights Law as a source of law for fair trials……………………...24 g. Domestic U.S. law & the right to a fair trial……………………………………………....25 h. Rights not covered in this Guantanamo Bay Fair Trial Manual………………………....27 II. Roles & Responsibilities of NGO Observers……………………………………………………....29 a. The why and how of NGO Observers………………………………………………………..…29 b. Responsibilities of NGO Observers………………………………………………………….…30 c. NGO Observers serve an extremely important role for all stakeholders……………………32 III. Background & Brief History of U.S. Military Commissions at Guantanamo Bay, Cuba…...…33 a. The 9-11 attacks and the immediate aftermath…………………………………………...33 b. Law governing U.S. Military Commissions…………………………………………….…34 c. Active Guantanamo Bay Military Cases…………………………………………………..35 d. U.S. Military Commissions are “War Crimes Tribunals” not “Terrorism Tribunals”……..36 Not to be Quoted or Reproduced Without Permission --- This is a Draft. © 2014 E-mail - [email protected] GitmoObserver The Gitmo Observer (of Indiana University McKinney School of Law) Page 4 of 282 Guantanamo Bay Fair Trial Manual www.GitmoObserver.com [12 November 2014, 2:30 a.m.] IV. General Information About the Case to Be Observed……………………………………………39 V. General Categories of Rights of Guantanamo Bay, Cuba, Military Commission Stakeholders…………………………………………………………………………………………45 A. Right to be Presumed Innocent; Right to Have the Burden of Proof on the Prosecution...47 B. Freedom from Retroactive Application of Criminal Laws (No Ex Post Facto Laws)…….55 C. Freedom from Double Jeopardy (Ne Bis in Idem)…...…………………………………...…57 D. Right to Trial by Competent, Independent and Impartial Tribunal………………...…..…59 E. Right to Effective Assistance of Counsel……..……..……..……..…….……..……..…..…...69 F. Right to Information & Access to Information……..…….……..……..……..……………..79 G. Rights Related to Classified Information..…..……..……..……..……..……..……………...85 H. Rights to Adequate Time & Facilities to Prepare a Defense…....…….…………………….93 I. Right to Prompt Judicial Proceedings……..…….……..……...…………..……..………....103 J. Right to Trial Without Undue Delay, Within a Reasonable Time, or to Release; Right to Speedy Trial……………………………………………………………………………......…105 K. Right to Liberty and Security of Person, including Freedom from Arbitrary Detention and Right to Review of Lawfulness of Detention…….….……...………………………….....…109 L. Right to Humane Treatment & Humane Conditions of Detention…….…….....................111 M. Freedom from Torture, and Cruel and Inhuman Treatment or Punishment……..……..113 N. Freedom from Incommunicado & Solitary Confinement; Right to Access to the Outside World……..…….……..……..……..……..……..……..……..……………..…......................119 O. Rights to Interpreter / Translator……..…….……..……..……..……..……..……..............121 P. Right to Public Proceedings……..……..…….……..……..……..……..……..……..............125 Q. Freedom from Self-Incrimination; Right Not to be Compelled to Testify Against Oneself or to Confess Guilt……..……..…….……..……..……………………..………….................129 R. Right to Equality of Arms; Equality Before the Courts; Equal Protection of the Law….137 S. Right to be Present at or Absent From Pre-Trial Hearings……..……..…….……..……..143 T. Right to be Defend Oneself in Person or Through Counsel of His Own Choosing………145 U. Right to Examine and Cross-Examine Witnesses……..……..…………..……..………….149 V. Right to Exclusion of Illegally Obtained Evidence…………………………………………153 W. Rights of Detainees Who Were Juveniles When Taken to Guantanamo Bay…………....155 X. Right to Appeal (Interlocutory, Conviction, Sentence)…………………………………….157 Y. Rights to a Remedy (Victims, Detainees, Defendants)……………………………………..161 VI. Rights of Victims & Victims’ Families……..…..……..……..……..……..……..……..……...…163 VII. Rights of the Prosecution……..……..……..……..……..……..……..……..……..……..…….…173 VIII. Rights of the Press……..……..……..……..……..……..…….…..……..……..……..……….…175 IX. Rights Related to Witnesses (Expert and Fact Witnesses)……..……...…….…..……………...181 X. Rights & Interests of Joint Task Force-GTMO…………………………………………………185 XI. Rights of the U.S. public…………………………………………………………………………..187 Not to be Quoted or Reproduced Without Permission --- This is a Draft. © 2014 E-mail - [email protected] GitmoObserver The Gitmo Observer (of Indiana University McKinney School of Law) [14 November 2014, 2:30 a.m] Guantanamo Bay Fair Trial Manual www.GitmoObserver.com Page 5 of 282 XII. Rights of the international community………………………………………………………...…189 XIII. Rights and Interests of NGO Observers………………..……..……..……..…………………...191 XIV. Conclusion (forthcoming)…...………………………..……..……..……..……………………...199 XV. Appendices……………………………………………..……..……..……..………………............201 Appendix A: Sources of International Law……………………………………...…………..…203 1. International Humanitarian Law Treaties…………………………………………….…205 a. Geneva Conventions of 1949, Common Article 3..…..……………………........….…207 b. Protocol Additional I to the Geneva Conventions of 1949, article 75……….……...209 c. Protocol Additional II to the Geneva Conventions of 1949, article 6………….…....211 d. Third Geneva Convention (Prisoners of War) (Excerpt)...……………………….....213 2. International Human Rights Law Instruments…………………………………………..215 a. Universal Declaration of Human Rights……………………………………………...217 b. International Covenant on Civil & Political Rights, Article 14...………………...…219 c. United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (excerpts).………………………………………………...221 d. Basic Principles and
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