May
17, 2002
Aryeh
Neier,
President of the Open Society Institute, and former Executive Director
of Human Rights Watch
Interview
by Anthony Dworkin
The
more we move along, the more it seems that we are going outside
whatever legal framework we have for dealing with various kinds
of crimes. Because when Bush initially proposed the military commissions,
it seemed to me, the suggestion was that these were people who were
likely to be charged with committing war crimes. They could be judged
by a military tribunal because that is what is provided for in the
international law of war; they didnt have to be brought before
a domestic American court. But at this stage it doesnt seem
as though in fact theyre going to be charged with war crimes.
It seems that theyre going to be charged if at all with a
conspiracy to commit terrorism. Then the question is, under what
body of law would these charges take place? Is there international
criminal law under which these charges would take place? Is there
domestic law in the United States? And I dont think the administration
has yet identified a body of law under which charges would proceed.
So I think the whole thing at this stage is in a kind of legal limbo.
If
we find some new framework, to meet what is said to be a new set
of circumstances, I dont think it can be simply detaining
these people without any kind of proceeding. And then the question
is, what would actually be charged against them in a proceeding.
And I would imagine that if youre going to proceed in a way
that adheres to at least principles of law, if not the actuality
of law, youd have to prove the following: That al Qaeda, or
whatever organization theyre alleged to be associated with,
is a criminal organization, that they are members of this criminal
organization, that in affiliating with this criminal organization
they were aware of the crimes that were committed by al Qaeda or
that al Qaeda conspired to commit, and that their membership in
al Qaeda was a conscious combination to be involved in such a criminal
conspiracy. I mean that would be analogous lets say to what
the United States Supreme Court ultimately determined with respect
to Smith Act prosecutions. That is, that its not enough to
be a member of the criminal organization, you have to have knowledge
of the crimes that were committed or that are to be committed, and
have the intention of being a member of the conspiracy for those
purposes.
It
is a high standard of proof, but if you revert to an earlier period,
and you say that there was an international Communist conspiracy
to overthrow the government of the United States, would it have
been sufficient to say that someone is proven to be a Communist
and therefore can be imprisoned on those grounds? Thats what
the courts essentially said in the United States in cases like Dennis
dealing with the conviction of the top Communists, but subsequent
Supreme Court rulings said thats not sufficient, you have
to know about the conspiracy and have the intention of the acts
which were attributed to the conspiracy. If one doesnt do
that, then you could get an awful lot of people who could be rounded
up and held indefinitely why these people and not a great
many other people who could be detained in this way?
With
regard to the proof you would need beyond mere membership
ordinarily with a conspiracy, youd want to show a certain
number of overt acts, and I think a training camp would in fact
be such an overt act. Whether thats sufficient for the purpose
of demonstrating knowledge if youre engaged in a training
camp that shows you how to blow up buildings or how to carry out
assassinations, I think thats a significant overt act.
As
far as the detention of people without trial or after acquittal,
until the end of hostilities that seems to import the laws
of war, but I dont think you can have it both ways. I think
you can charge people with crimes of war, if youre going to
proceed on the theory that their crimes are related to the armed
conflict, and then holding them until the end of the armed conflict
would be consistent with the laws of war. But it looks to me as
though the administration has moved away from crimes of war, and
intends not charging them with things related to the actual hostilities,
but charging them with respect to an international terrorist conspiracy,
and defining that as being something that is outside the laws of
war. So importing that concept from the laws of war looks to be
a sort of, choose one from column A and one from column B, and whatever
is most harmful to the people who have been apprehended is what
were going to go with.
I think
they have to make some kind of choice. I dont think its
altogether unreasonable to say that weve got a new situation,
and weve got to improvise, but if you improvise, I think theres
a fidelity to the principles of law that you still have to maintain
and just reaching out and taking that one thing from the laws of
war, and not providing any of the benefits of the laws of war to
the defendants, doesnt seem to me to accord with principles
of law.
Clearly
the administration should be seeking an international consensus
for its proceedings, on at least two grounds. Number one, I think
that would provide a greater spirit of lawfulness to what is done.
Beyond that, I think that it is politically in the interests of
the United States to convey the impression that what it is doing
is legitimate, and I think it arouses cynicism about professions
of lawfulness by the US if we act unilaterally in these circumstances.
So I think theres a political interest in approaching this
multilaterally and a legal interest in approaching it multilaterally.
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