Due Process and International Terrorism

Studies in Intercultural Human Rights

Editor-in-Chief

Siegfried Wiessner St. Thomas University

Board of Editors

W. Michael Reisman, Yale University • Mahnoush H. Arsanjani, United

Nations • Nora Demleitner, Hofstra University • Christof Heyns, University

of Pretoria • Eckart Klein, University of Potsdam • Kalliopi Koufa,

University of Thessaloniki • Makau Mutua, State University of New

York at Buffalo • Martin Nettesheim, University of Tübingen; University

of California at Berkeley • Thomas Oppermann, University 0f

Tübingen • Herbert Petzold, Former Registrar, European Court of Human

Rights • Martin Scheinin, European University Institute, Florence

VOlUME 1

This series offers pathbreaking studies in the dynamic field of intercultural human rights. Its primary aim is to publish volumes which offer interdisciplinary analysis of global societal problems, review past legal responses, and develop solutions which maximize access by all to the realization of universal human aspirations. Other original studies in the field of human rights are also considered for inclusion.

Due Process and International Terrorism

by

Roza Pati

lEIDEN • bOSTON 2009

ISSN: 1876-9861 ISbN: 978 90 04 17238 8

Copyright 2009 by Koninklijke brill NV, leiden, The Netherlands. Koninklijke brill nv incorporates the imprints brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP.

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Table of Contents

Preface ix

Acknowledgments xi

CHAPTER I Delimitation of the Problem 1 A. Due Process in Criminal Proceedings 1 B. Defining States of Emergency 14 C. Terrorist Acts as Grounds for a State of Emergency 24

CHAPTER II Criminal Due Process Guarantees in Peacetime: The International legal Regime 31

A. Human Rights Treaties 38 1. The International Covenant on Civil and Political Rights and the

Jurisprudence of the Human Rights Committee 38 a. Due Process before Trial 42 b. Due Process during Trial 52 c. Due Process in Appeal 69

2. The European Convention on Human Rights and Fundamental Free- doms and the Jurisprudence of the European Court of Human Rights 72 a. Due Process before Trial 74 b. Due Process during Trial 82 c. Due Process in Appeal 96

3. The Inter-American Convention on Human Rights and the Jurispru- dence of the Commission and the Court 97 a. Due Process before Trial 97 b. Due Process during Trial 100 c. Due Process in Appeal 103

4. The African Charter on Human and Peoples’ Rights and the Jurispru- dence of the African Commission on Human and Peoples’ Rights 104 a. Due Process before Trial 104 b. Due Process during Trial 106 c. Due Process in Appeal 112

Table of Contentsvi

B. Customary International Law and General Principles of Law 112 1. Due Process in Customary International Human Rights Law 113

a. The Universal Declaration on Human Rights 113 b. General Principles of Law Recognized by the Community of

Nations 117 c. Déni de justice: International Minimum Standard of Diplomatic

Protection 120 C. Due Process in Proceedings before International Criminal Tribunals 124

1. The International Military Tribunals in Nuremberg and Tokyo 125 a. The IMT at Nuremberg 125 b. The IMT at Tokyo 130 c. Appraisal of both Tribunals 131 b. The International Criminal Tribunal for the former Yugoslavia

and the International Criminal Tribunal for Rwanda 135 c. The International Criminal Court 144

CHAPTER III Domestic Criminal Due Process Guarantees: A Case Study of the United States of America 167

A. Overview 167 B. Due Process before Trial 171

1. The Prohibition against Unreasonable Search and Seizure 171 2. Arrest 174 3. Pre-Trial Detention and Bail 176 4. Pre-Trial Investigation 179

a. The Privilege against Self-Incrimination 179 b. Miranda 181 c. The Exclusionary Rule 184

5. Grand Jury Review 186 6. The Right to Be Clearly Informed of Charges in Indictment or Infor-

mation 189 7. The Presumption of Innocence 190 8. The Prohibition of Double Jeopardy 190 9. Plea Bargaining 193

C. Rights to and in Trial 197 1. Trial by Jury 198 2. The Right to an Impartial, Independent and Competent Tribunal 201 3. The Right to a Speedy and Public Trial 205 4. The Right to Counsel 208 5. The Adversarial Process: Equality of Arms 211 6. Discovery Rights 212 7. The Right to an Interpreter 213 8. Sentencing 213

a. The Prohibition of Cruel and Unusual Punishments 213 b. Proportionality 214 c. The Death Penalty and Death Row 215

Table of Contents vii

d. The Execution of Juveniles 219 D. Rights in Prison 222 E. Habeas Corpus 226 F. Right to Appeal 227 G. Customary International Law of Human Rights as United States Law 228

CHAPTER IV Criminal Due Process in Times of Emergency and Terrorism: The International legal Regime and Comparative Perspectives 235

A. Treaty Law and Jurisprudence 240 1. The International Covenant on Civil and Political Rights, Article 4, and

the Jurisprudence of the Human Rights Committee 240 2. The European Convention on Human Rights and Fundamental Free-

doms, Article 15, and the Jurisprudence of the European Commission and Court of Human Rights 255

3. The Inter-American Convention on Human Rights, Article 27, and the Jurisprudence of the Inter-American Commission and Court of Hu- man Rights 265

4. The African Convention on Human and Peoples’ Rights and the Juris- prudence of the African Commission on Human and Peoples’ Rights 273

B. Customary International Law 274 C. The Community of Nations’ Responses to Terrorism 278

1. The Response of the International Community as a Whole 278 a. Before September 11, 2001 278 b. After September 11, 2001 282

2. The Response of the International Community as Individual States 288

CHAPTER V Domestic Criminal Due Process in Times of Emergency and Terrorism: The United States of America 295

A. States of Emergency and the Constitution Prior to 9/11: Ex parte Milligan (Civil War), Ex parte Quirin (World War II), and Youngstown Steel (Korea) 295

B. U.S. Anti-Terrorism Measures After September 11, 2001 314 1. Overview 314 2. The U.S.A. PATRIOT Act 316 3. Detention, Treatment and Adjudication of Persons Designated En-

emy Combatants in the Global War on Terror 326 a. President Bush’s 2001 Military Order on Detention, Treatment,

and Trial of Certain Non-Citizens in the War Against Terrorism 327 b. Detention of Persons Designated Enemy Combatants in the

Global War on Terror 331 aa. The Status of Guantánamo Detainees 333 bb. Rasul v. Bush and Hamdi v. Rumsfeld 339 cc. Combatant Status Review Tribunals and Administrative

Review Boards 346 dd. Post-Rasul Habeas Corpus Litigation 352 ee. The Detainee Treatment Act of 2005 356

Table of Contentsviii

ff. The Military Commissions Act of 2006 358 gg. Boumediene v. Bush 360 hh. Detention Post-Boumediene 368

c. Treatment of Persons Designated Enemy Combatants in the Global War on Terror 372 aa. Torture and Inhuman Treatment 372 bb. Extraordinary Renditions 380 cc. Extrajudicial Targeted Killings 384

d. Adjudication of Suspected Enemy Combatants in the Global War on Terror: The Role of Military Commissions 386 aa. Department of Defense Military Commission Order No. 1:

Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism 386

bb. Hamdan v. Rumsfeld 395 cc. The Military Commissions Act of 2006 404 dd. The Manual for Military Commissions of January 2007 408 ee. Practice Under the Military Commissions Act 414

CHAPTER VI Appraisal of Domestic Measures under International law 425 A. The Applicable Legal Regime: General Framework 425 B. Application of International Law to the U.S. Global War on Terror 431

1. General Considerations 431 2. The Global War on Terror: A State of Emergency? 432 3. Application of the Substantive Emergency Human Rights Regime 436

a. Indefinite Detention to Prevent Future Acts of Terrorism or to Investigate Past Such Acts 438

b. Extrajudicial Targeted Killings 446 c. Torture and Cruel, Inhuman or Degrading Treatment 447 d. Adjudication before Military Commissions 454

CHAPTER VII Discussion of Alternatives and Recommendation of Solutions in the Global Common Interest 461

Select bibliography 477

Index 503

Preface

This book should be read by everyone who is interested to know more about the nar- row borderline separating legally acceptable from unacceptable measures or acts in the fight against international terrorism. However, the book does not present easy so- lutions. It is not written by an author who has closed her eyes and mind vis-à-vis the danger for State and society emerging from terrorism. Certainly, the perspective that Roza Pati presents, clearly reflects her background: on the one hand, her grandfather was extra-judicially executed in the 1950s in Albania, hence her commitment to due process; on the other hand, she was an elected Member of Parliament and a member of the Cabinet, as the Secretary of State for Youth and Women in Albania, during the beginning of the democratization process of this country in the 1990s. She experi- enced a number of upheavals in the newly established democracy, and understands the responsibility of the State towards liberty of the individual, but also towards peace and security of its population and the democratic society. Consequently, she is seeing both sides of the medal. She fully appreciates the seriousness of the situation.

She does not belong to those who just bluntly, and more often than not, arrogantly, deliver their judgment. She gives the State what it needs to fulfill its protective func- tions, but by the same token she draws a line, which the State must never cross. The “cardinal principles of liberty,” as Justice Davis had already put it nearly 150 years ago in the famous Milligan case (1866), must always be preserved. Torture as well as the creation of “black holes” where individuals are detained without having the chance of judicial supervision negate the right to recognition everywhere as a person before the law, a fundamental guarantee inherent in human beings’ dignity.

Additionally, the book teaches us another important lesson. A society, firmly founded on the ideas of liberty, separation of powers and the rule of law will always be strong enough to regain its balance, even if the borderline mentioned above was overstepped, be it with good or bad intent.

Roza Pati’s literate and profoundly researched study leaves the reader in a thought- ful mood. One recognizes the imperfection of our world, and is encouraged to strive for the better. The author and what she has to say deserve attention.

Eckart Klein Potsdam, Germany

Acknowledgements

This book is an updated version of my doctoral dissertation entitled Criminal Due Process Guarantees and International Terrorism as a State of Emergency: An In- ternational Legal Analysis, submitted to the University of Potsdam Faculty of Law, Germany. It includes events up to October 15, 2008.

My first and deepest gratitude goes to my Doktorvater, Prof. Dr. iur. Eckart Klein, whose unfailing support, consummate expertise, and intellectual guidance accompa- nied this scholarly journey with exemplary critical dedication and encouragement. I owe abiding appreciation to Prof. Dr. iur. Siegfried Wiessner, the Editor-in-Chief of the Studies in Intercultural Human Rights, a series which this book has the excep- tional honor to inaugurate. His academic rigor, his commitment to a world order of human dignity, and his challenge to excel were essential sources of inspiration. I am also grateful to Prof. Dr. Michael Reisman for his most gracious comments on my book, and for the invaluable time he dedicated to reading my manuscript.

At Universität Potsdam, Juristische Fakultät, I give special thanks to PD Dr. iur. Norman Weiß for reading my manuscript and offering his valuable comments, as well as to Prof. Dr. iur. Andreas Musil, who chaired my rigorosum committee.

I am also grateful to St. Thomas University School of Law, the place of my stud- ies, my teaching, and my continuing academic work, for the superb conditions it has created for my research and writing. The rich collection of its law library and the skillful professionalism of its staff were indispensable to the success of my doctoral endeavor.

Last but not least, I remain forever indebted to my dear family whose uncondi- tional support, understanding and love surrounded me in all the long days, months, years – the countless hours of work. I could have never been able to succeed in this project without their unselfish encouragement, generous care, warm wishes, bless- ings and prayers.

I respectfully bow to all of the above, since by them, as Horace would rhyme, I was taught how best my pearls to thread…

Roza Pati Miami, U.S.A.

CHAPTER I Delimitation of the Problem

Fiat justitia ne pereat mundus*

A. Due Process in Criminal Proceedings

Humanity is engulfed in “a new order of threat.”� It is living in the age of a global battle against terrorism, a war, as it is often called, that it did not necessarily choose to fight. 21st century civilization is living in a bizarre “world where the name of God is some- times associated with vengeance or even a duty of hatred and violence.”� Barely one day passes by without bomb blasts somewhere on this planet, and their innocent vic- tims making the headline news. Communities keep counting their dead. In the midst of this turmoil, society, in all of its layers, reacts and passes judgments of right and wrong, both morally and legally. These reactions not only differ from one individual to another, but, most of the time, they also diverge from group to group. Undoubt- edly, one of these layers of society, the law makers and the legal profession, bears a heavy burden in that struggle. Torn between the ends of public security and effec- tive administration of justice on one side, and the interests of the individual justly or unjustly accused on the other side, they become key actors in the search for fruitful approaches to adequately regulate the natural imbalance of power in criminal pro- ceedings, this confrontation of the lone accused with the vast machinery of the state. While most of society’s sentiments and apprehension, augmented by the media, rest with the victims in fear of the heightened potency of terrorism,� the legal profession

* Latin for “Let justice be done lest the world should perish.” G. W. F. Hegel, Grundlinien der Philosophie des Rechts [Elements of the Philosophy of Right] (1821), para. 130. This formulation appropriately adjusts the Latin maxim fiat justitia ruat coelum which means “Let justice be done, though the heavens fall.”

1 C. Warbrick, Emergency Powers and Human Rights: The UK Experience, in Legal In- struments in the Fight against International Terrorism: A Transatlantic Dialogue 361, 392 (C. Fijnaut, J. Wouters & F. Naert eds., 2004).

2 Supreme Pontiff Benedict XVI, Deus Caritas Est: Encyclical Letter to the Bishops, Priests and Deacons, Men and Women Religious and All the Lay Faithful on Christian Love, Vatican, Dec. 25, 2005, available at http://www.vatican.va/holy_father/benedict_xvi/en- cyclicals/index_en.htm .

3 For comments on a victim-oriented approach as a contributing factor to potential denial of due process, and the influence of media as an important agent in this respect, see Susan Marks & Andrew Clapham, International Human Rights Lexicon 160 (2005). See also Peter Judson Richards, Extraordinary Justice: Military Tribu-

2 Chapter I

has to be fully preoccupied not only with the victim, but also with the victimizer. This seeming paradox, that might baffle the lay person, does in fact constitute the axis of a lawyers’ work in a democratic society, where the standards of conduct are “the law” for all, where the rights, be they grounded in natural law� or granted by positive law, belong to all, and where the lawyers’ job and professional duty is to achieve justice for their clients through effective legal representation, in the process adding a measure of justice to society.�

Due process of law is one of these rights, which is as important as it is most easily and most extensively violated. In order to be able to evaluate the process due an ac- cused in today’s war against terror, one should first know the basic legal guarantees, both domestic and international, as well as the standards that have already been set in this regard and the evolving trends and tendencies. It is widely accepted that justice can only be served through fair trials, and the prejudgment of guilt should be curbed at its inception. No matter how dedicated the justice system is in its search for truth, the legal process is run by humans, and thus cannot help but yield imperfections and deficiencies. The modern-day community, on a global scale, has, by and large, moved forward to accept and develop procedures that may benefit any accused, even the guilty one, and as it does so, it looks at the judicial infirmities of the past, which tell cautionary stories for the present and the future.

Once a crime has been reported or even suspected, and depending on its prima facie nature, type and scale, it immediately might become the central focus of interest of the political, social, and, most of all, the legal community. However, often in dis-

nals in Historical and International Context 187-188 (2007). Professor Scha- bas notes that “whereas in the past human rights law sought to protect the human rights of the accused without real regard to guilt or innocence, it is now torn by another ex- treme, one that is oriented towards the victim and that thrives upon conviction.” William A. Schabas, Balancing the Rights of the Accused with the Imperatives of Accountability, in From Sovereign Impunity to International Accountability: The Search for Justice in a World of States 154, 165 (Ramesh Thakur & Peter Malcontent eds., 2004).

4 Rights essentially do not derive from the state or any other external authority, conse- quently may not be taken away. They “derive from the inherent dignity of the human person,” as noted in the Helsinki Final Act, Principle VII. Thus, any official behavior that affronts human dignity should be considered a violation of the rights of the person. With- in the topic of our discussion, for example, it is incompatible with respect for inherent human dignity to punish detained persons by psychological or physical means that would humiliate them by ridiculing their beliefs, their origins or their way of life, or to deny them the capacity to assert claims to basic rights. For a detailed analysis of human dignity as a normative concept, the meaning of the inherent dignity of the human person, the conduct incompatible with it, as well as the relation of human dignity to human rights, see Oscar Schachter, Human Dignity as a Normative Concept, in Human Rights Law 101-107 (Philip Alston ed., 1996). See also Eckart Klein, Human Dignity in German Law, in The Concept of Human Dignity in Human Rights Discourse 145-159 (David Kretzmer & Eckart Klein eds., 2002).

5 Anthony D’Amato, On the Connection between Law and Justice, in Philosophy of Law 19, 20 (Joel Feinberg & Hyman Gross eds., 5th ed. 1995).

3The Problem

tinction from the rest of society, the legal community is simultaneously demanding of justice being served and of defendants’ rights being respected. The latter constitutes the central demand on a true public order of human dignity, based on the liberty of the individual.

A broad array of issues and concerns regarding guarantees of due process of law in criminal proceedings arises right from the start of the reported crime or its initial suspicion, and incessantly shifts on up to the final point in case of a conviction, the serving of the sentence by the offender. The individual’s vulnerabilities both in the in- vestigative and in the adjudicative phase are numerous, and awareness of this critical exposure would likely yield the process due and a fair outcome, when it is undisput- edly based on the laws of a country, human rights treaties and customary internation- al law. But this legal process, like any other part of life, has its own shortcomings.

The parties involved in the pre-trial phase, particularly the individual and the po- lice, might have different stories to tell. The defendant might have been arbitrarily ar- rested and detained or held incommunicado; he might not have been told the reasons for his arrest; in a U.S. context, he might have been unaware of the Miranda rights; he might have been refused his one phone call; his habeas corpus right might have been violated; his home could have been searched without a warrant; he could have been tortured at the police station; he could have been subjected to inhumane conditions during his detention. Later on, if a plea bargain is not entered into, in the legal sys- tems where this procedure is available, the defendant will face trial, hoping for equal access to and equality before the court, in a speedy, fair and public hearing.

In a democratic system, trial procedures are very comprehensive, and concerns for, as well as aspirations to, natural or substantive justice override many other con- siderations of the legal system. However, at this stage, further vulnerabilities await the accused. Concerns about trial by a jury, where available, by a judge or by a mixed bench come to the fore, followed suit by the apprehension regarding his incrimina- tion; his access to files of the prosecutor, to facilities and time to prepare his de- fense, to a translator/interpreter if needed; the possibility of cross-examination of witnesses; obedience or not to rules of evidence protecting him; capped by issues of a competent, independent and impartial tribunal, which refrains from the retroac- tive application of criminal laws, avoids double jeopardy, etc. The process, and the problématique of its fairness, continues with post-trial issues in the appeals phase. Is the appellate review going to be timely and genuine? Is there going to be a new trial in case of a gross miscarriage of justice? A new venue, if needed? Will there be compensation if the defendant has already suffered punishment as the result of a miscarriage of justice?

All of these questions and concerns constitute the institutional framework, the crucible within which to appraise the due process of law in a democratic society. They demand that, no matter how deliberative and reflective the process might be, no stone be left unturned to both capture and evaluate all of the aspects of this no- tion and their consequences, while searching for the truth and for justice. Before we address the notion of due process of modern times, however, we ought to look for its meaning and its roots: What, in essence, is due process? How did the concept of “due

4 Chapter I

process of law” come into being? What, in history, were the issues and vulnerabilities that brought about its legal paradigms of today?

Due process, a seemingly uncomplicated phrase, has come to have contested meanings. While those meanings are suggestive, they are hardly self-explanatory.� Se- mantically,� the word “process” has everyone in agreement; however, the word “due” has constantly been seen as the vague part of the concept. While its basic meaning as defined by the dictionary is “owed,”� the interpretation of what it entails in the con- text of a criminal proceeding has taken centuries to be developed. As with any other ambiguous or controversial term, “due process of law” remains a concept that cannot be described in one single phrase, nor has it been easy to arrive at the understanding that the legal community, municipal or international, have today of due process of law.� Judges and lawyers have struggled over centuries to give content to the phrase. They have at times reached certain standards, some of which persisted over time and some of which did not endure for long, in the never-resting, meandering stream of decisions. This history leads us to believe that it would be naïve to assume that now its meaning is ascertained for good.

In many respects, the enumeration of what is “owed” to the accused in the process of trial and punishment resembles a miniature general code of criminal procedure.�0 Many of the components of what is “owed” were first to find expression not only in

6 John V. Orth, Due Process of Law: A Brief History (2003), at Preface X. 7 As it will be seen in the course of this book, the semantic approach would not help us

much. Dworkin was right to object to conventionalism, as a semantics approach, which seeks the nature of something by means of describing the thing’s most obvious features, and then identifying those which are most essential, in explaining how the word is used. He calls this approach the “semantic sting.” See J.G. Riddall, Jurisprudence 99 (1999). Dworkin picks up this issue again when he writes about originalism and fidelity to the Constitution. He argues that some interpreters wrongly perceive fidelity to the Constitu- tion to be fidelity to its text. Addressing “textualists” such as Justice Scalia, he states that in interpreting the very same text he would reach “radically different conclusions” from theirs. In some circumstances, he writes, it could be justified to disregard fidelity to the text, and to be aware of the distinction between the semantic intention of the framers and their political or expectation intention. The Eighth Amendment’s prohibition of “cruel and unusual punishment,” for example, may reflect the punishments that were judged cruel by the “popular opinion of their day,” but maybe the correct standards of “cruel” in popular opinion in the U.S. today might come to include, say, capital punishment, which he then would consider unconstitutional. See Ronald Dworkin, Justice in Robes 118- 135 (2006).

8 Samuel Johnson, A Dictionary of The English Language (11th ed. 1779). 9 The scope of due process expanded with the shift of interests of power and law: first it

was all about landed property, then other intangible interests appeared, then agreements and contracts, then the focus became civil rights, etc., and due process developed not only as a right to procedural fairness, but also as a substantive guarantee. For a detailed history of this development of due process, see David J. Bodenhamer, Fair Trial: Rights of the Accused in American History (1992).

10 Id. at 5.

5The Problem

codes or legislative actions but also through wearisome processes of pre-trial and trials, in the detention stations as well as in the courtrooms of several legal tradi- tions. Understandably, this led to dissimilar standards. It is exactly the differences rather than the commonalities that bring about the need for a check of municipal due process against a minimum floor of guarantees, particularly in criminal proceed- ings, that have been agreed upon internationally. From a jurisprudential perspective, another point of debate could be its reference to a process of law which is owed to the accused because of it being granted by “the law of the land,” thus reflecting a positivist stance, or rather because it is fair, right and just for a human to be entitled to an in- herent right to due process of law, evidencing a natural law, dignity-based approach, drawing on and reaffirming the ethical dimension of this right.��

Any crime represents a threat to stability and it is