UN investigator blasts US justice system

After a two-week fact-finding tour of US prison and detention facilities, a UN human rights investigator has blasted the Bush administration for a rash of shortcomings in the country's flawed justice system and continued violations of the rule of law. Unleashing a stinging barrage of attacks, Professor Philip Alston, the UN special rapporteur on extra-judicial, summary and arbitrary executions, singles out the existence of racism in the application of the death penalty in the United States, and the lack of transparency in the deaths of prisoners in the Guantanamo Bay detention facility housing suspected terrorists. Alston, a professor at the New York University School of Law and an outspoken critic of human rights abuses worldwide, also complains about the non-availability of information on civilian casualties in Iraq and Afghanistan, and the refusal of the US Justice Department to prosecute private security contractors who commit unlawful killings. During his 14-day tour of the United States at the invitation of the administration, he met with federal and state officials, judges and civil society groups in New York, Washington, DC, Alabama and Texas. Alston was particularly critical of the state of Texas which has refused to review the cases of foreign nationals on death row, most of whom had been deprived of the right to consular assistance from their home countries. He specifically chose to visit Alabama "because it has the highest per capita rate of executions in the United States, and Texas because it has the largest number of executions and prisoners on death row." Still, 129 individuals waiting on death row have been exonerated across the United States, since 1973, and the number continues to grow. "Indeed, while I was in Texas, the conviction of yet another person on death row was overturned by the Court of Criminal Appeals," Alston said. While in this case DNA testing ultimately prevented the execution of an innocent man, Alston said, others may have been less fortunate. "In Texas, I met a range of officials and others who acknowledged that innocent people might have been executed," he said, adding the problem is that a criminal justice system with recognized flaws that the government refuses to address will always be capable of mistakes. In his report, Alston points out that studies across the United States also suggest racial disparities in the application of the death penalty. In particular, many studies suggest that a defendant is more likely to receive the death penalty when the victim is white, and some studies also suggest that a defendant is more likely to receive the death penalty if he is African American. "When I raised this issue with federal and state government officials, I was met with indifference or flat denial," said Alston, who noted that many officials wrote off the results of studies showing racial disparity as being biased because they were written by researchers with anti-death penalty views. "Given what is at stake, there is a need for governments at both the state and federal levels to revisit systematically the concerns about continuing racial disparities," he said. Meanwhile, to date, just six of the "enemy combatants" detained at the US detention facility in Guantanamo Bay, Cuba have been charged with capital offenses under the Military Commissions Act (MCA). They are being tried before military commissions on war crimes charges, and if convicted, face the death penalty. According to Alston, the United States has an obligation to provide fair trials which afford all essential judicial guarantees. "The fundamental principles of a fair trial may never be derogated from. But the text of the MCA, which provides the rules which govern the trials, and the experiences of those with whom I met during my mission involved in the trial process to date, indicate clearly that these trials utterly fail to meet the basic due process standards required for a fair trial under international humanitarian and human rights law," he added. There have been five reported deaths of detainees at Guantanamo Bay in 2006-07. Four were classified as suicides, and one was attributed to cancer. In the custodial environment, Alston said, a state has a heightened duty and capacity to ensure and respect the right to life. As a result, there is a rebuttable presumption of state responsibility whether through acts of commission or omission in cases of custodial death. The state has an obligation to investigate the deaths, and publicly report on the findings and the evidence upon which the findings are based. "But the Department of Defense has provided little public information about the causes or circumstance of any of these deaths," he said. While it has been reported that autopsies were conducted in each case, the results have not been made public or even provided to the families of the deceased men, he added. It was also reported that the Naval Criminal Investigative Services is conducting investigations into each of the deaths. But over two years since the first deaths, no results of investigations have been released. In Iraq and Afghanistan, where the US military is considered an occupying power, Alston points to a string of human rights abuses and violations of the rule of law. He said the "troublingly opaque character of the US military justice system is well illustrated by a case described to me by witnesses and investigators when I visited Afghanistan." On Mar. 4, 2007, US Marines responded to a suicide attack on their convoy, in which one soldier was wounded, by killing 19 people and wounding many others in the space of a 10-mile retreat. "I asked the regional commander in Afghanistan what follow-up had occurred. He could not tell me and explained that his unit had just arrived in Afghanistan and that accountability for incidents involving the previous unit was its responsibility and that it had taken all the relevant files when it left the country," Alston said. In fact, a Court of Inquiry into the incident proceeded in North Carolina. "Shortly after I returned from Afghanistan, the US military released a short statement on this incident indicating that the commander of US Marine Corps Forces Central Command had conducted a thorough review of the report of a Court of Inquiry and had determined that the soldiers had acted appropriately and in accordance with the rules of engagement and tactics, techniques and procedures in place at the time in response to a complex attack." Unsurprisingly, he said, this conclusive and unsubstantiated response to such a serious incident was met with dismay in Afghanistan. "Afghans and Americans have a right to ask on what basis this conclusion was reached," Alston said. "But all of the documents produced by the Court of Inquiry have remained classified. The record of proceedings has not been released. The 12,000 page report of the Court of Inquiry including recommendations and factual findings has not been released." The US government has even disregarded the existing regulation stating that the convening authority should ensure that an executive summary of the report be made public in order to inform government officials, the legislative branch, the media, and the next of kin of the victims of the investigations findings and recommendations. "Whether or not the decision not to initiate courts-martial was justified, the manner in which the military justice system has operated in this case is entirely inconsistent with principles of public accountability and transparency," he declared. Regarding killings by private security contractors, Alston said: "It's the [US] Department of Justice's job to prosecute private security contractors who commit unlawful killings, but it has done next to nothing."