Flawed Instruction contrary to accepted international law practices 

Washington, DC (March 7, 2003) -- Citing a concern, among others, that U.S. military personnel could face danger due to its provisions, criminal defense bar leaders filed comments today with the Department of Defense General Counsel’s Office commenting on the DoD’s draft Instruction pertaining to crimes and their elements, as well as procedures, for use by military commissions. The proposed Instruction was issued on February 28th.

The comments by the National Association of Criminal Defense Lawyers raised the concern that the proposed Instruction is so alien to recognized principles of international law, especially the Law of Armed Conflict, that by implementing them, the Department of Defense is seriously jeopardizing the legal rights and privileges of American military members abroad, should they become captured.

“Our concern [with the Instruction] is founded in part on the prospect that American prisoners of war in future conflicts may be harmed if this Instruction is used as a justification for improper treatment of Americans,” said Lawrence Goldman, president of NACDL, in a letter to DoD General Counsel William J. Haynes which accompanied the comments.

“Foreign countries capturing American military members would have no incentive to grant them POW status,” said Donald G. Rehkopf, Jr., a criminal defense lawyer in Rochester, New York, and co-chair of NACDL’s Military Law Committee. “Using our own DoD principles contained in the proposed Instruction, our enemies could subject them to ‘trials’ in violation of international law.”

President Bush, by a prior order, authorized use of military commissions, often called tribunals, to try alleged terrorists and other military “detainees,” in order to avoid public trials in federal courts.

NACDL’s Military Law Committee, co-chaired by Rehkopf, Terri R. Z. Jacobs, and Jack B. Zimmerman, each of whom have extensive military law backgrounds and experience, drafted the comments. In forwarding NACDL’s comments to the DoD, Goldman noted that the proposed Instruction is fundamentally flawed.

“There is a serious Constitutional question about the Defense Department legislating crimes and their elements,” said Goldman, a criminal defense lawyer in New York City. “According to the plain language of Article I, Section 8, of the United States Constitution, it is the duty of Congress, not the Defense Department, to ‘define and punish …offenses against the Law of Nations.’”

According to NACDL’s comments, the proposed Instruction also ignores numerous federal statutes that Congress has enacted dealing both with military commissions and trials of persons accused of war crimes and terrorist acts. The proposed Instructions “simply fail to acknowledge Congressional will in this area,” said Goldman.

The comments also address significant ex post facto problems and a fundamental shifting of the burden of proof that is contrary to accepted principles of Anglo-American law, according to the comments. “Requiring a defendant to prove his or her innocence is not part of our Constitutional framework, nor is it a recognized concept under international law,” Goldman said.

NACDL also objected to the proposed Instruction’s provisions on self-defense and duress, its failure to recognize statutes of limitation under American and international law, and various definitions pertaining to concepts of criminal justice.

“For the DoD to run the risk of jeopardizing the lives of America’s military members, for the sake of expediency in prosecuting an alleged terrorist by a military commission, is an unconscionable slap in the face to those who wear the uniform to defend America,” said Rehkopf.

Goldman can be reached at (212) 997-7499.

Rehkopf can be reached at (585) 454-2000.

Jacobs and Zimmerman are criminal defense lawyers in Houston and can be reached at (713) 552-0300.

(Read DoD Military Commission Instruction / Letter to DoD General Counsel / Position on Draft Military Commission Instruction / Analysis of Draft and Report )

Contacts

NACDL Communications Department

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.