David Nevin and Scott McKay

Re: David Nevin and Scott McKay

To: Mr. Leandro DESPOUY, UN Special Rapporteur on the Independence of Judges and Lawyers

From: Gail Davidson, Executive Director, LRWC, and Paulo de Tarso Lugon Arantes, LRWC Brazil Monitor

Date: 2008-05-22

We write to advise you of the United States of America (USA) actions and omissions that have resulted in a violation of the fair trial rights of Khalid Sheikh Mohammed and a violation of the right and duty of lawyers David Nevin and Scott McKay to properly represent Mr. Mohammed. We request that you take the remedial action set out herein (Requests, para. 4, page 12) before June 5, 2008. Messieurs Nevin and McKay, both USA civilian attorneys and members of the American Civil Liberties Union, have volunteered to represent Khalid Sheikh Mohammed in criminal proceedings brought against him by the USA under the extra-legal Military Commissions Act and to be held at Guantánamo Bay, Cuba. The USA has denied and is denying these two lawyers access to Mr. Mohammed. USA authorities are insisting on, and failing to provide, security clearance for the two lawyers.

1 – The Facts of the Case
Khalid Sheikh Mohammed was born in Kuwait of Pakistani parents and is believed to be a citizen of Pakistan. On or about March 1, 2003 Mr. Mohammed was taken prisoner in Rawalpindi (Pakistan) by the Pakistan Inter-Service Intelligence (ISI) and has been in USA custody since then. He was held in a secret prison until being transferred to Guantánamo Bay in September 2006. He has had no known contact with, or access to a lawyer representing him since being taken prisoner on March 1, 2003.

On February 5, 2008 USA Central Intelligence Agency (CIA) Director Michael Hayden told the USA Senate Intelligence Committee that the CIA had used waterboarding to interrogate three men, Mr. Moahmmed, Abu Zubaydah and one other man.

On February 6, 2008 a White House spokesperson announced the waterboarding as used by the CIA was duly authorized and therefore was not torture. It is assumed that the USA will adopt this position in the proceedings against Mr. Mohammed.

On February 11, 2008 the USA laid charges of murder and war crimes under the Military Commissions Act (MCA) against Mr. Mohammed. A military tribunal created under the authority of the MCA will determine the charges against Mr. Mohammed, who is not a member of the USA military. Mr. Mohammed faces the death penalty if convicted.

Evidence obtained from CIA interrogations of Mr. Mohammed and Mr. Zubaydah is expected to be introduced at the MCA proceedings. The USA has scheduled Mohammed’s arraignment before the military tribunal for 5 June 2008.

The American Civil Liberties Union (ACLU), through the John Adams Project, and in partnership with the National Association of Criminal Defense Lawyers, formed a group to provide lawyers to Guantánamo detainees. In February 2008, through this initiative, civilian attorneys David Nevin and Scott McKay advised the USA of their availability and intention to represent Mr. Mohammed in the MCA proceedings. The USA has failed and refused to allow the lawyers or either of them, access to Mr. Mohammed. The USA maintains that security clearance for each lawyer is a pre-requisite to allowing communications between the lawyers and Mr. Mohammed. At the same time the USA refuses to grant security clearance to the lawyers and fails or refuses to conduct the process by which any legitimate security concerns could be identified and ameliorated.

Mr. Nevin and Mr. McKay were given security clearance by the USA for another terrorist-related case four and a half years ago. The delay by USA authorities in granting the security clearance that would allow these lawyers to represent Mr. Mohammed appears to be part of the ongoing policy to deny prisoners all means of asserting any rights, including the right to prepare and present a defense to criminal charges that may result in execution.

Guantánamo Bay prisoners have been subjected to the most serious human rights abuses including: torture, degrading and inhumane treatment, arbitrary and indefinite detention, denial of habeas corpus and denial of due process. The aforesaid treatment violates international customary law and international human rights conventions, including the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel or Inhuman Treatment or Punishment and the Geneva Conventions.

USA denial of due process, habeas corpus and access to independent and impartial tribunals enables the USA authorities to both continue these violations, to prevent remedies and to ensure impunity for the perpetrators. For these reasons, it is of critical importance that Mr. Mohammed (and other Guantánamo Bay prisoners) have timely access to competent legal counsel.

Without access to Mr. Mohammed, Nevin and McKay are unable to prepare an adequate legal defense.
2 – The Relevant Law

2.1 – General Context – Terrorism and Fundamental Rights
The Military Commissions Act (MCA) purports to authorize the prosecution and trial of non-USA citizens by military tribunals. The MCA has been criticized by scholars, human rights organizations and by civilian and military jurists as violating so many internationally recognized rights, standards and principles as to foreclose the possibility of a fair trial. Violations permitted by the MCA include: reception of evidence obtained through illegal coercion, conduct of the proceedings in the absence of the accused, reception of hearsay evidence, prosecutions for ex poste facto offences, exclusion of applicable USA and international laws protecting the rights of accused persons and the reception of evidence not known to the accused. The MCA has been criticized widely as foreclosing the preparation and presentation of an adequate defense.

2.2 – Measures taken by the USA purportedly to combat terrorism or to protect or promote national security must comply with international law
The USA has no authority to suspend or override the rights of non-USA nationals for the purpose of combating terrorism or for the purpose of protecting USA national security. Rather the USA has a duty, in acting to combat terrorism, to comply with all international human rights and humanitarian law obligations.

The UN Security Council, of which the USA is a permanent member, has clearly stated this obligation in Resolution 1456 (2003), which states:
“States must ensure that any measure taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law.”

This duty is confirmed by the jurisprudence of international human rights tribunals. The Inter-American Court of Human Rights (I/ACtHR), for example, has referred to the overriding duty of States to adhere to the law, verbis:
[W]ithout question, the State has the right and duty to guarantee its security. It is also indisputable that all societies suffer some deficiencies in their legal orders. However, regardless of the seriousness of certain actions and the culpability of the perpetrators of certain crimes, the power of the State is not unlimited, nor may the State resort to any means to attain its ends. The State is subject to law and morality. Disrespect for human dignity cannot serve as the basis for any State action.

The European Court of Human Rights (ECtHR) similarly rejected the notion that a State can act outside the obligations and restrictions of international law in order to combat terrorism.
[T]he Court stresses that this does not mean that the Contracting States enjoy an unlimited discretion to subject persons within their jurisdiction to secret surveillance. The Court, being aware of the danger such a law poses of undermining or even destroying democracy on the ground of defending it, affirms that the Contracting States may not, in the name of the struggle against espionage and terrorism, adopt whatever measures they deem appropriate.

Moreover, the United Nations Human Rights Committee (HRComm) has stated that States must respect and protect fundamental rights of all individuals under their jurisdictions, regardless of their nationality or statelessness:
States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. […] As indicated in General Comment 15 adopted at the twenty-seventh session (1986), the enjoyment of Covenant rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State Party.

It remains clear that the USA maintains effective control over the geographic space of Gauntánamo Bay, since the State in question entered into an agreement with Cuba in order to occupy this geographical area and keep a military basis. The theory of effective control for the assessment of State responsibility represents a traditionally accepted standard rather than a novelty in international law, as the relevant jurisprudence has asserted:
This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party […]This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation.

Therefore, the human rights violations occurring at Guantánamo Bay are fully attributable to the USA.

2.3 – The Right to Fair Trail
The USA has an international obligation to arising from the ratification of the International Covenant on Civil and Political Rights (ICCPR) to ensure and protect Mr. Mohammed’s right to a fair trial. The right to a fair trail, although not specifically designated as a non-derogable right by the text of the ICCPR, represents the procedural means to ensure the enjoyment of the non-derogable rights. The HRComm has established in General Comment 29 that “procedural safeguards may never be made subject to measures that would circumvent the protection of non-derogable rights”. Therefore, the right to fair trail cannot be displaced even when States are challenged with the most adverse situations, including acts of terrorism.

The ICCPR, articulates basic fair trial rights in Article 14:
1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.
2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
(c) To be tried without undue delay;
(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;
(g) Not to be compelled to testify against himself or to confess guilt.

The USA has not, to the knowledge of the authors, notified the UN Secretary General on the derogation of any of the rights enshrined in the ICCPR as per the requirement of Article 4. Thus, the rights guaranteed by Article 14 must be respected and protected by the USA.

International human rights jurisprudence has determined that the duty of a State to ensure and protect the right to a fair trail implies a set of obligations. Firstly, State officials must allow lawyers the contact with clients necessary to the preparation and presentation of a full defense. In casu, the undue delay in allowing communications between Mr. Mohammed and lawyers Nevin and McKay constitutes a critical hindrance of the lawyers’ ability to adequately perform their professional duties. Secondly, States must allow access to the case files, in order for the accused lawyer(s) to: learn full particulars of the charges, know the particulars of inculpatory and exculpatory evidence in the possession of the prosecution, analyze the admissibility and reliability of evidence, identify the legal and procedural issues and establish and prepare an appropriate defense.

2.4 – The Fundamental Lawyers’ Rights and Duties
The right to a fair trial by an independent and impartial tribunal to determine criminal charges, as articulated by Article 10 of the Universal Declaration of Human Rights (UDHR), is part of customary international law.

Article 14 of the ICCPR further creates, as a key component of the right to the fair trial of criminal charges, the right to be represented by legal counsel chosen by the accused.

The Basic Principles on the Role of Lawyers further requires states to ensure that access to legal counsel by detained persons such as Mr. Mohammed, is prompt, confidential and free from interference. Article 8, states as follows:
All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within the hearing, of law enforcement officials.

The importance of timely access was emphasized by the ECtHR in Magge v. UK where the court determined that denial of access to a lawyer for a period of 48 hours constituted a violation of Article 6 (right to fair trail) of the European Convention on Human Rights:
In the Court’s opinion, to deny access to a lawyer for such a long period [48 hours] and in a situation where the rights of the defence were irretrievably prejudiced is – whatever the justification for such denial – incompatible with the rights of the accused under Article 6.

In the case of Mr. Mohammed, the USA has denied access to a lawyer for more than 5 years since his imprisonment and for more than 3 months since David Nevin and Scott McKay applied for access to him for the purpose of defending him. It is reasonable to conclude that Mr. Mohammed’s rights to defend the charges have been, by the denial of access to a lawyer alone, irretrievably prejudiced.

Five independent UN experts expressed, in a carefully prepared report, grave concerns about the extent to which the USA legal regime governing Guantánamo Bay deprives prisoners of access to judicial safeguards of rights and to fair trials.
The Chairperson of the Working Group on Arbitrary Detention and the Special Rapporteur on the independence of judges and lawyers are deeply concerned about the legal regime applied by the United States to the detainees in the Guantánamo Bay detention centre. In their view, the legal regime applied to these detainees seriously undermines the rule of law and a number of fundamental universally recognized human rights, which are the essence of democratic societies. These include the right to challenge the lawfulness of the detention before a court (ICCPR, art. 9 (4)) and the right to a fair trial by a competent, independent and impartial court of law (ICCPR, art. 14); they protect every person from arbitrary detention and unjust punishment and safeguard the presumption of innocence.

Moreover, as that report revealed, the Combatant Status Review Tribunal (CSRT) and the Administrative Review Board (ARB) procedures do not provide detainees with a defense counsel, but rather a “personal representative”, to whom no legal professional training is required, or a duty to confidentiality is imposed. Further, that report concluded that the aim of this “personal representative”, without a duty of confidentiality would not be to provide the detainee with a defense, but to gather information on the possible criminal conduct of accused.

2.5 – Military and Special Bodies Trying and Punishing Civilians
There is a consensus among human rights monitoring bodies that military tribunals performing predominant judicial functions, that try and punish civilian individuals, violate the principles of impartiality and independence. The main factors underlying this consensus are because military tribunals are not established by law, do not apply dully established legal procedures and are formed by military members, such military tribunals lack independence and impartiality and their deliberations tainted by actual or perceived bias against accused.

The HRComm has stressed these concerns in a number of States parties’ reports. The ECtHR, has confirmed this analysis in several cases, particularly in Ocalan v. Turkey:
The Court points out that in [several previous] judgments […] it noted that certain aspects of the status of military judges sitting in the State Security Courts that had convicted the applicants in those cases raised doubts as to the independence and impartiality of the courts concerned. The applicants in those cases had had legitimate cause to fear that the presence of a military judge on the bench might have resulted in the courts allowing themselves to be unduly influenced by considerations that were not relevant to the nature of the case.

The I/ACtHR, in Castillo Petuzzi et al. v. Peru, has also determined that the trial of a civilian by a military tribunal violates due process and fair trial rights.
In effect, military tribunals are not the tribunals previously established by law for civilians. Having no military functions or duties, civilians cannot engage in behaviors that violate military duties. When a military court takes jurisdiction over a matter that regular courts should hear, the individual’s right to a hearing by a competent, independent and impartial tribunal previously established by law and, a fortiori, his right to due process are violated. That right to due process, in turn, is intimately linked to the very right of access to the courts.

A basic principle of the independence of the judiciary is that every person has the right to be heard by regular courts, following procedures previously established by law. States are not to create “[t]ribunals that do not use the duly established procedures of the legal process … to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.”
[…] This Court has held that the guarantees to which every person brought to trial is entitled must be not only essential but also judicial. “Implicit in this conception is the active involvement of an independent and impartial judicial body having the power to pass on the lawfulness of measures adopted in a state of emergency.”
[…] The Court has established that the military proceedings against the civilians accused of having engaged in crimes of treason were conducted by “faceless” judges and prosecutors, and therefore involved a number of restrictions that made such proceedings a violation of due process. In effect, the proceedings were conducted on a military base off limits to the public. All the proceedings in the case, even the hearing itself, were held out of the public eye and in secret, a blatant violation of the right to a public hearing recognized in the Convention.

Therefore, according to the jurisprudence, military tribunals such as those created by the MCA are not competent to determine criminal charges against civilians in accordance with internationally accepted fair trial standards including standards binding on the USA.

3 -Conclusion
The special bodies established by the USA under the authority of the MCA do not provide the internationally recognized fundamental guarantees to a fair trial to prisoners such as Khalid Sheikh Mohammed accused of criminal charges. The MCA does not provide for the quality of access to a lawyer that is required by international law binding on the USA, namely access that is timely, confidential and free from interference. These conditions violate both the fair trail rights of Mr. Mohammed and the right of the lawyers to fully represent Mr. Mohammed.
The delay on the part of the USA authorities in enabling and allowing David Nevin and Scott McKay access to Mr. Mohammed is tantamount to total obstruction of access.

Given the scheduled arraignment on the 5 of June, the USA failure and refusal to allow access appears to have irretrievably hampered the ability of David Nevin and Scott McKay (or any other lawyers) to prepare a full defense for Mr. Mohammed.

4 – Requests
For the above reasons, we kindly request the Special Rapporteur to take the following measures. Although this petition is not an Urgent Action, considering the exiguous time available, particularly having regarded the date of 5 June for the arraignment of Mr. Mohammed, LRWC requests you to:
1. Take note of this communication and immediately forward it to the USA;
2. Request the USA to allow immediate and unrestricted access by David Nevin and Scott McKay to Mr. Mohammed;
3. Request the USA to provide information on the reasons for the delay in conducting and concluding security clearance;
4. Request the USA to address the claim that the fair trials rights of Khalid Sheikh Mohammed have been irretrievably prejudiced by the actions and omissions of the USA as cited above.
5. Request the USA to advise of the measures taken and to be taken by the USA to ensure and protect the fair trial rights of Khalid Sheikh Mohammed as guaranteed and described by the UDHR, ICCPR, Basic Principles on the Role of Lawyers and the other authorities and jurisprudence cited above.