On November 13, 2001, US President George W. Bush issued a new Executive Order on the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism. It provides for the trial by military tribunals of non-citizens in the United States charged with terrorism. The use of military tribunals would authorize secret trials without a jury and would limit a defendant’s opportunities to confront the evidence against him and choose his own lawyer. These important legal protections would be removed in a situation where defendants may well be facing the death penalty. It would even cover the non-citizens living in USA for a long time.

It is the height of hypocrisy of the United States to impose such a tribunal when US Admn. has repeatedly protested against such a treatment of US citizens in other countries. The Order nails the hypocritical propaganda of the US Admn. about their human rights concern in other countries.  It also nails the lies of the US Admn. in their so-called war against terrorism when they talk of democratic rights on the one hand, and pass such a blatantly undemocratic order on the other. This Order, combined with the Justice Department’s announced intentions to eavesdrop on attorney conversations with inmates and to begin interviewing foreign visitors to the United States, shows the extent of denial of democratic rights by the US Admn.

The Executive Order is against the provisions of the International Covenant on Civil and Political Rights (ICCPR), which the U.S. ratified in 1992 besides providing two standards of justice to the citizens and non-citizens. The said Covenant (ICCPR) does provide for certain exingencies in some cases but lays down that even in those cases the derogation of certain rights, such as the right to be free from torture (article 7) and the prohibition of ex-post facto laws (article 15) will hold. 

The US Admn. has shown callous disregard for the rights of the non-citizens though they have been intervening in other countries only on this pretext. The non-citizens are now to be denied the very basic rights guaranteed by the international law as also by the hitherto existing "due process" of the US Constitution. The issuance of the Order shows the growing fascistic character of finance capital in the imperialist countries.

We can see the real mischief of the Order only by seeing some of the provisions. It is surprising that Indian rulers of BJP-RSS could see no harm in this Order, rather they wish to emulate it. Like proverbial monkeys they see no wrong in whatever US Admn. may or may not do. They have shown utter disregard that even Indians living in US will be subject to the provisions of this Order. 

Section 2 of the Executive Order permits the arrest and detention of persons on grounds that are vague and not overboard.  It allows taking a person into custody if the President has “reason to believe” that the individual took part in “acts of international terrorism” against the United States.  It is important that "acts of international terrorism" are not defined. It can only lead to use for arbitrary arrests and detentions, an immunity from which was granted by the provisions of ICCPR.

Section 3 of the Executive Order provides for conditions of detention that are distinct from those under existing U.S. law. There is no requirement, for example, that persons detained under the Executive Order be told the reason for their arrest or be promptly informed of charges against them; that persons deprived of their liberty be brought before a judicial authority who can decide on the lawfulness of their detention; or that those unlawfully arrested or detained shall have an enforceable right to compensation.  Effectively the Executive Order allows for the arrest and indefinite detention of persons without charge and without legal recourse should they be unlawfully held. 

The Executive Order makes a mockery of the right of "fair trial". There are no provisions for determining whether and to what extent trials should be public, nor even a requirement that judgments be made public.  There is no requirement of a presumption of innocence, or that defendants have access to the evidence submitted against them, or even that proof of guilt be established beyond a reasonable doubt.  It is left undetermined to what extent defendants will have access to legal counsel of their choice, whether they will be able to communicate with counsel, and whether adequate time and facilities will be provided for a defence.  No protection is provided against forced confessions.

Section 7 of the Executive Order states that a terrorist suspect “shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual’s behalf” before a U.S. or any other court. Indeed, there is not even a provision for appellate review by a separate military commission panel, only non-judicial review by the President or the Secretary of Defence as the President’s designate. This denies the defendant the right to an appeal provided under international law, which is especially troubling because the Executive Order expressly contemplates military commissions handing down death sentences.  It also denies the right to effective redressal to all persons, including U.S. citizens, who might be affected adversely by the law.

There has been widespread criticism of this Executive Order, particularly by the civil liberties organizations. Replying to such criticism, Attorney General Ashcroft claimed that because the terrorists responsible for the September 11th attacks committed war crimes, they “do not deserve the protection of the American Constitution.”  It is significant that in one blow he has equated all suspects of terrorism as having waged war against United States. Further he has not bothered to take into account that even prisoners of war deserve to be treated as human beings and afforded free trial according to international law as also the past insistence of US Admns.

The Executive Order is a travesty of justice and is being done in the name of fighting terrorism. What is it if not state terrorism ! We in third world countries are used to such convoluted arguments of our rulers. But the imperialist powers claimed to maintain different standards in their own countries even while they supported worst transgression of democratic rights by the reactionaries and military dictators in third world countries. And now the non-citizens would get the fascist treatment in these so-called free democracies.