Suspending The Constitution for Terrorists

Renee Dopplick
International Law Blog Postings
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Should alleged terrorists be given a fair trial and a reasonable opportunity to confront witnesses and challenge evidence against them? If so, should they be compensated with reduced sentences if the government violates international law in their prosecution and detainment?


Attorney Andrew Cohen reported today for CBS News that the U.S. Supreme Court conferred Friday about the fundamental right of all defendants, including that of terrorists, to a fair trial in U.S. courts of law. The White House and Justice Department have requested a “national security” exemption to the
Sixth Amendment, which guarantees, inter alia, the right to obtain witnesses in the defendant’s favor and the right to a speedy and fair trial. The case involves Zacarias Moussaoui, a French national of Moroccan ancestry who is the only U.S. defendant charged in the September 11 attacks. Moussaoui seeks to call other terror suspects in U.S. custody to testify in his defense that he was not involved in the attacks. The government fears that any access to or even written depositions from those witnesses may reveal classified information and cannot be allowed due to security concerns. Instead of actual testimony, the government would provide the defense with written summaries, known as “substitutions”, of detainees’ testimonies. At the international level, the United States signed and ratified in June 1992, with
reservations, the International Covenant on Civil and Political Rights, which outlines a fundamental right to “examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him” [Article 14].

Given the importance of this decision on U.S. constitution law, and potentially international law, below is look at a case in Peru where a United Nations working group determined that Peru’s prosecution of an alleged terrorist was contrary to Article 14 of the International Covenant on Civil and Political Rights. Moreover, the Inter-American Court of Human Rights found Peru in violation of international treaties. While the Court ruled that the Peruvian government denied the alleged terrorist a fair trial and violated international law, the convicted terrorist received no reduction of sentence for the government’s wrongdoing, including for its “cruel and degrading treatments.” Below is the story of US Citizen Lori Berenson, currently serving a 20-year sentence for her collaboration with terrorists in 1995 in Peru.

Territorial State Jurisdiction
A decade ago in Peru, US citizen Lori Berenson, an MIT graduate, was arrested and later found guilty for collaborating with the Marxist Túpac Amaru Resistance Movement (MRTA) rebels in Peru to attack and seize the Peruvian congress with the purpose of demanding that then-Peruvian president Alberto Fujimori release MRTA rebels. She was found guilty in a secret military tribunal of violating Peru’s 1992 anti-terrorism legislation, Decree-Laws 25.475 and 25.659, and, for her crime of high treason, sentenced to life imprisonment in Yanamayo Prison, a Peruvian jail at 3,870 meters (12,700 feet) above sea level.

The military tribunal did not provide her a reasonable opportunity to question evidence, introduce her own evidence, or interview witnesses. Military tribunals differ from civilian tribunals in that the standard of admission for evidence is generally lower and military tribunals can be held in secret. The MIT newspaper reported a spokesperson for the Peruvian embassy as characterizing the use of a military tribunal, rather than a civilian tribunal, as “within the boundaries of contemporary international law.”

Under pressure from the United States and the United Nations1, the Supreme Military Court in Peru annulled her sentence in August 2000 and turned the case over to a civilian court. In June 2001, the civilian court found her guilty of collaboration with terrorists, rather than the original high treason, and sentenced her to 20 years in prison. A 4-1 decision of the Supreme Court of Justice of Peru confirmed the sentence on 13 February 2002.

Regional Jurisdiction
On 22 January 1998, an appeal on behalf of Lori Berenson was filed with the Inter-American Commission on Human Rights 2 based on violations of due process and rights established in the American Convention on Human Rights, a treaty ratified by Peru on 12 July 1978. The United States is a signatory to the Convention but, to date, has not ratified the Convention. In addition to the establishment of the Commission, the Convention established the Inter-American Court of Human Rights. Peru accepted jurisdiction of the Inter-American Court on 21 January 1981. When U.S. President George Bush was asked about the Lori Berenson case, he deferred to the authority and decision of the Inter-American Commission on Human Rights.

The Inter-American Commission on Human Rights submitted its private review and recommendations to the state of Peru for action. Procedurally, when a state fails to comply with recommendations, the Commission may decide to take the case to the Inter-American Court of Human Rights, as was the case with Lori Berenson’s appeal.

Enhancing her appeal was the political pressure from an elected official in the United States, the unanimous 7-0 decision in her favor by the Commission, and the serious concern by the United Nations in regards to Peruvian Decree-Law 25.475 governing Lori Berenson’s original charges. A
1996 U.N. report3 concerning Peru’s compliance with the International Covenant on Civil and Political Rights expressed serious concerns with Decree-Law 25.475:

With regard to article 1 of this law, declaring that the Amnesty Law
does not undermine the international human rights obligations of the 
State, the Committee stresses that domestic legislation cannot modify 
a State party's international obligations under the Covenant.

An amicus curiae brief filed with the Inter-American Court of Human Rights on 3 April 2004 by Dr. Gil Barragán Romero and representing 41 organizations involved in human rights, including Nobel Peace Prize winner Rigoberta Menchú, called for the Court to uphold the findings of previous courts and of the Commission that Decree-Law 25,475 governing Lori Berenson’s original charges, violated the American Convention. They advocated that prisoners unfairly convicted under the illegal law should be released. While not addressing any specific international law, the brief echoed the sentiments of the United Nations regarding domestic legislation that bypasses the international community’s expectation of the protection of human rights:

This instrument is being presented due to concern over the inadequate 
consideration that has been given to the protecting of human rights 
in the adoption and enforcement of statutes, procedures, rules, and 
related laws that regulate conduct commonly designated as "terrorist" 
by states' criminal justice systems.

The brief also included harsh criticism of the United States’ role in influencing legal and justice systems throughout the Americas:

Since the terrorist attacks of 11 September 2001 on the World Trade 
Center in New York and the Pentagon in Washington, D.C., and the 
"War on Terrorism" proclaimed by the Government of the United States, 
the U.S. Government has not only adopted and enforced radical laws and 
procedures, it has also pressured other OAS member states, especially 
Colombia, to adopt similar legislation as part of this 
"global war on terrorism." These events and responses pose a 
grave threat to human rights.

Despite the strong political and legal support, on 25 November 2005, the Inter-American Court of Human Rights affirmed her current 20-year sentence (Spanish)4 and called upon Peru to “adapt its internal legislation to the standards of the American Convention” [p. 113]. It was the first reversal by the Court of a recommendation put forth by the Inter-American Commission on Human Rights. While the Court found that the Peruvian military tribunal did violate Articles 5, 8, and 9 of the Convention regarding humane treatment, right to due process, and laws in compliance with the Convention, the Court found that her sentence for “collaboration with terrorists” in civilian court did not violate Article 9 of the Convention:

Article 9. Freedom from Ex Post Facto Laws

No one shall be convicted of any act or omission that did not 
constitute a criminal offense, under the applicable law, at the 
time it was committed. A heavier penalty shall not be imposed 
than the one that was applicable at the time the criminal 
offense was committed. If subsequent to the commission of the 
offense the law provides for the imposition of a lighter 
punishment, the guilty person shall benefit therefrom.

Judge Cecilia Medina Quiroga dissented with Judge Oliver Jackman issuing a separate dissent. Judge Medina expressed concern that the Court, in its restricted review of the validity of evidence in the Peruvian criminal court, acted as an appeals court within the Peruvian system, rather than as a regional court of human rights. 

Esto constituye, en mi opinión, una transformación  de 
la Corte Interamericana en un tribunal de cuarta instancia, 
lo que no le  está permitido, tanto por las normas que la 
rigen como por su propia  jurisprudencia ya mencionada.

(translated)
This constitutes, in my opinion, a transformation of the 
Inter-American Court into a court of fourth instance, which 
is not allowed to it, as much by the norms that govern it 
as by its own jurisprudence already mentioned.

In light of Peru’s serious violation of international obligations in the matter of human rights, Judge Medina proposed a “significant reduction” of the sentence, such as a two-to-one reduction with two days given for each day Lori Berenson suffered “cruel and degrading treatments.” Judge Jackman, while voting in concurrence with the decision of the Court, agreed with a reduction of sentence.

Lori Berenson is serving her 20-year sentence in Peru and is scheduled for release in 2015.

  1. Lori Berenson v. Peru, Working Group on Arbitrary Detention,
    U.N. Doc. E/CN.4/2000/4/Add.1 at 12 (1998)
  2. Lori Berenson v. Peru, Case 11.876, Report No. 56/98, Inter-Am. C.H.R., OEA/Ser.L/V/II.95 Doc. 7 rev. at 208 (1998)
  3. Human Rights Committee, Comments on Peru, U.N. Doc. CCPR/C/79/Add.67 (1996)
  4. Lori Berenson Mejía vs. Perú, I/A Court H. R., (Ser. C) No. 119 (2004)

Additional Resources

Catalog note: an American sentenced in Peru, related to Shining Path.

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