Reform Jewish Leader Welcomes Due Process Protections for Military Tribunals; Calls for Independent Appeals Process
Heller: The Defense Department's regulations suggest that our government intends to pursue just means as we call to account those responsible for the horrible attacks of September 11.
Contact: Alexis Rice or Michael Weiner 202-387-2800
WASHINGTON, March 22, 2002 - In response to the military tribunal regulations released yesterday by the Department of Defense, Robert M. Heller, Chair of the Commission on Social Action of Reform Judaism, issued the following statement:
When President Bush issued an executive order authorizing the creation of military tribunals to try terrorism suspects, we expressed the concern that without the inclusion of fundamental due process protections, such courts would be patently unjust. The regulations released by the Department of Defense yesterday address many of our concerns by ensuring that individuals tried in tribunals are afforded the basic safeguards of our criminal and military justice systems, including the presumption of innocence, legal representation, guilt beyond a reasonable doubt and the right to avoid self-incrimination.
Unfortunately, one fundamental problem remains. Under the regulations, those convicted by tribunals would not necessarily have the right to appeal to an independent judicial body. Like the initial tribunal, appeals court members would be specially-appointed military officers or others under the direct command of the Executive Branch. The President would have the final say on all appeals. The lack of an independent appeals process not subject to veto by the President undermines fundamental values of our political and legal system - separation of powers and judicial review.
Without objective, non-political legal procedures, military tribunals would violate the very principles that make our system of justice legitimate and fair. Those convicted by tribunals must be allowed to appeal the decisions to an independent body, preferably to a federal civilian appeals court.
We recognize that the nature of the cases to be heard by the tribunals may require some modifications of normal criminal practice. For example, shielding the identities of judges, witnesses and lawyers may be necessary under some circumstances, and certain portions of the trials may have to be held in secret in order to prevent the release of information vital to preserving our national security. Similarly, tribunals may not be able to adhere strictly to all of the traditional rules of evidence that govern civilian and military courts, so that, for example, reliable hearsay may have to be admissible in some circumstances. These concessions take into account the extraordinary nature of the terrorist threat without compromising the tradition of democracy and human rights that our nation seeks to defend against those bent on destroying us.
That is why we are deeply concerned by Secretary of Defense Donald Rumsfeld's suggestion that many individuals currently being detained in Guantanamo Bay, Cuba may not be tried at all, but instead held indefinitely without any recourse. The establishment of military tribunals should allow us to avoid such a gross violation of basic human rights, to adjudicate the cases of suspected terrorists fairly and promptly, without further endangering our national security.
Jewish tradition commands us: "Tzedek, tzedek tirdof - Justice, justice shall you pursue" (Deuteronomy 16:20). Biblical commentators have suggested that the word "justice" is repeated in this powerful passage to teach us that we must act justly in the pursuit of justice; that we must insist on both just ends and just means. The Defense Department's regulations suggest that our government intends to pursue just means as we call to account those responsible for the horrible attacks of September 11. But we will not truly fulfill this moral charge unless we ensure that military tribunals are bound by an independent and fair appeals process and that individuals are not detained indefinitely without trial or legal recourse.
The Religious Action Center of Reform Judaism is the Washington office of the Union of American Hebrew Congregations (UAHC) , whose over 900 congregations across North America encompass 1.5 million Reform Jews , and the Central Conference of American Rabbis(CCAR) whose membership includes over 1800 Reform rabbis .