- The Washington Times - Sunday, July 20, 2003

With military tribunals in the offing at our naval base in Guantanamo Bay, Cuba, the president will be adding to his controversial authority to solely decide the imprisonment of those who may be involved with terrorism. Already, he has, on his own, labeled two American citizens as enemy combatants and put them in military brigs in our country indefinitely — without charges or access to lawyers.

By himself, the president will accuse non-citizens allegedly involved in terrorism and put them on trial by military tribunal. The defendants will have no right to appeal to civilian courts, including the U.S. Supreme Court. In London, Stephen Kenny, attorney for likely defendant David Hicks, an Australian citizen, has already characterized the proceeding as a “show trial,” and the Foreign Office of our ally, Britain, has told The New York Times of its intense concern about the fairness of the trial.

Under the revised Defense Department guidelines for these tribunals, the three to seven judges will be commissioned military officers. And while only a two-thirds majority vote will be required for a guilty verdict, the panel must be unanimous on a death sentence.

The defendant will have military lawyers. If he or she can afford them, the accused will also be able to hire civilian attorneys. Ordinarily, in such high-profile trials and with the world watching, one would expect many qualified defense lawyers to volunteer.

However, because of the rules of engagement in these military tribunals, Lawrence S. Goldman, president of the National Association of Criminal Defense Lawyers — the leading organization of the American defense bar — has advised its 11,000 members not “to act as civilian counsel at Guantanamo.” Mr. Goldman admits that this is against the tradition of the defense bar, which, he notes, has represented “the despised ever since John Adams represented the British soldiers accused of the Boston massacre.”

At one point, Mr. Goldman himself was thinking of going to Guantanamo, but when he fully examined the rules concerning counsel for the trials, he concluded that they “make it near-impossible for a defense attorney, civilian or military to provide a zealous defense or to act ethically.”

For example, a defense attorney representing a combatant must agree that all conversations with the defendant will be monitored by the government “for intelligence purposes.” I know many successful defense attorneys and cannot imagine any of them accepting a rule that cuts into the core of the lawyer-client confidentiality — essential to effective representation of a defendant under the American rule of law.

Moreover, the defense attorney must get permission from the Defense Department before speaking to the press. While not a total gag rule, it’s so broad that it covers more than the classified information that may be part of the trial.

Justice cannot be done behind closed doors — all the more so when the world, including our allies, will be watching.

Clearly, the abdication of the right of the defense to appeal to our civilian courts is the most formidable denial of due process for a conscientious defense attorney, but there is also the Defense Department rule that any evidence can be admitted that “would have probative values to a reasonable person.” That could mean hearsay or second-hand evidence. That so-called evidence could have been obtained from a person tortured by police in a country — and this includes some of our allies — where torture is a customary procedure to persuade prisoners to say what the captors want them to say.

Jonathan Turley, a professor of constitutional law at George Washington University, wrote in the March 21 edition of the Los Angeles Times — when these new rules for the military tribunals were first disclosed — that a key problem in these trials is whether the prosecutors’ evidence against the defendant is authentic.

In the military tribunals, says Mr. Turley, the “prosecutors will not have to ‘authenticate’ evidence — or even show a chain of custody” of the evidence they present to the military officers determining the defendant’s fate.

Was the evidence hearsay or extracted by torture in another country? And, do the members of the tribunal care?

Of additional concern, and not only for defense lawyers, is the probability — in view of the denial of basic constitutional rights to American citizens now being held as enemy combatants — that future trials by military tribunals will not be limited to non-citizens. This, after all, is an administration that too often makes up the law as it goes along.

Meanwhile, the world will see whether the military tribunals at Guantanamo will be — as Dr. Turley predicts — “a makeshift court designed to produce predictable convictions.”

How do we now lecture other countries for their courts’ due-process abuses?

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