The military commissions are not by any measure tribunals of demonstrably legitimate necessity, but creations of political choice. Amnesty International has opposed use of the military commissions ever since President George W. Bush signed an executive order in November 2001 establishing them for the trial of alien “enemy combatants” in what he called the “war on terror”.16That system was overturned by the US Supreme Court in 2006, but was replaced with a slightly revised system established under the Military Commissions Act (MCA) of 2006. President Obama signed a revised MCA into law in October 2009.
Especially given the continuing failure of the USA to meet its obligations of independent investigation, accountability, justice, and effective remedy, for the now well-documented allegations of torture and other ill-treatment, enforced disappearance, and other similar human rights violations against the individuals selected for trial by military commission, the military commissions cannot be divorced from the unlawful detention and interrogation regime for which they were developed. Neither a shift in location for such trials, nor a modification of the rules under which they operate, can cleanse them of this stained association or their own ill-conceived origins.
Even under the revised MCA passed in 2009, the military commissions will not meet international fair trial standards. International law requires that trials be conducted in independent courts; military commissions are not independent. As already noted, trial of civilians by military tribunals is inconsistent with international standards, especially when civilian courts are readily available. Applying inferior trial protections on the basis of nationality – US nationals cannot be tried by the military commissions – would violate the right to equality before the law, including as enshrined in article 14(1) and 26 of the ICCPR.17Indeed, the fact that under US law, US citizens who were accused of precisely the same acts of which these men are accused, could not be tried by the military commissions but only by the ordinary US courts, further demonstrates that the military commissions cannot even be said to meet the standards of necessity articulated by the UN Human Rights Committee.
The USA will not only be guilty of resorting to two standards of justice – reserving a second class version for selected foreign nationals – but also of double standards, directly contradicting its stated commitment to universality and accountability. Releasing the State Department’s latest report on the human rights records of other countries, Secretary of State Hillary Clinton said that the USA is committed to the universality of human rights and to “holding everyone to the same standard, including ourselves.”18In the entry on Egypt in that very report, for example, the USA criticized emergency legislation under which executive referral of criminal cases to emergency or military courts lacking “constitutional protections of the civilian judicial system” could be made. The State Department also reported that in Egypt during 2009 “there were cases of pre-trial detention exceeding legal limits.”