ACLU Outlines Unfair Trials and the Death Penalty at Human Rights Meeting

This week, I represented the ACLU at the annual Human Dimension Implementation Meeting (HDIM) of the Organization for Security and Cooperation of Europe (OSCE) in Warsaw, Poland. The OSCE is an intergovernmental organization consisting of 56 "participating states," including the United States, Canada, European countries, and Central Asia.

The HDIM is Europe's largest human rights conference, and the most significant OSCE event addressing human rights and democracy in Europe, North America and Central Asia. For two weeks, more than 1,000 government representatives, human rights defenders, scholars, members of civil society and journalists examined the processes and extent to which member countries of the OSCE have implemented their commitments to human rights and democracy.

The ACLU's opening statement on the unfair trials held at Guantánamo Bay, Cuba, triggered an audible buzz from the U.S. delegation's perch at the meeting. The ACLU statement delineated the inadequacy of the Military Commissions Act (MCA), signed into law by President George W. Bush in October, 2006, and noted its lack of "basic substantive and procedural protections codified in the U.S. Constitution, the Geneva Conventions, and numerous international human rights treaties ratified by the U.S." The statement strikes at the incredible inclusion of secret evidence, hearsay evidence and evidence obtained through torture that the MCA allows, and the imbalanced allocation of resources between the prosecution and defense. The statement calls for a special attention to the U.S. failure to meet international juvenile justice standards in its detention, treatment and prosecution of Omar Khadr and Mohammad Jawad who were under 18 at the time of their transfer to and imprisonment at Guantánamo and face charges before a military commission.

The formal response by the U.S. delegate mildly noted that the U.S. took note of the ACLU statement and that the issues raised by the ACLU are subject to debates in the U.S.; debates which consider pending legal cases before courts. He vaguely noted that there is accountability in the U.S., and that free press and independent courts check government actions. Several independent attendees at the meeting acknowledged the American statement as an attempt to gloss over the legitimate concerns of human rights organizations like the ACLU and the international community as a whole.

Freedom House representatives took advantage of this gathering to present their first-ever book written on an individual country (the United States) as a follow-up to a similar report they conducted on freedom in America about 20 years ago. Freedom House is known for its annual reports on freedom around the world in which countries are rated based on their record on civil and political rights. Freedom House's statement attempted to counter increasing international frustration with U.S. policies and defend what is left of America's damaged standing in the world. A former journalist from Moldova asked at the event what right the U.S. has to export democracy to the rest of the world.

The ACLU delivered a second statement on the state of capital punishment in the United States, highlighting the problems within a system that has exonerated 130 wrongfully accused death row prisoners in the last 35 years, provides inadequate counsel and access to the courts for indigent defendants, is fraught with procedural barriers that prevent death row prisoners from receiving adequate reviews of their cases, and is mired in racism — as found by the American Bar Association in a three-year study calling for a moratorium on executions.

Following this, the ACLU and Amnesty International packed the room in a joint round-table discussion entitled "The End of the 'War on Terror'? The Future of Counterterrorism and Human Rights in the OSCE Region." Five U.S. delegates attended the meeting, with one representative gently reiterating the same points made at the Freedom House event a day earlier about America's strengths in its independent judiciary and free press. These are no doubt American hallmarks and played a vital role in exposing secret government programs and thus checked its power, notwithstanding the repeated attempts by the U.S. administration to restrict dissenting speech and investigative reporting, as well as the government's unsuccessful attempt to strip courts of their Habeas jurisdiction.

A special guest and speaker who agreed to join the ACLU and Amnesty International was Dr. Adam Bodnar from the Polish Helsinki Foundation for Human Rights. Dr. Bodnar spoke about the ongoing investigation that was ordered by the Polish Prime Minister regarding reports by the media and human rights groups about secret U.S. detention facilities that operated on Polish soil. In 2007, the Parliamentary Assembly of the Council of Europe's report (PDF)
affirmed that "there is now enough evidence to state that secret detention facilities run by the CIA did exist in Europe from 2003 to 2005, in particular in Poland and Romania."

A recent report by The New York Times sheds more light on the CIA black site, including the revelation that Khalid Sheik Mohammad was waterboarded 100 times while in CIA custody in Poland.

The presence of the American Civil Liberties Union at this high-level conference on international human rights and democracy was warmly welcomed by members of the OSCE and HDIM participants from foreign governments, civil society groups and media. Most other human rights organizations and non-governmental organizations attending the gathering have historically been from locations east of Vienna. The general feeling of the week's proceedings made it abundantly clear that the next U.S. president's administration will have to work diligently to re-establish America's credibility to speak on human rights on any international platform.