Military Tribunals Circumvent Due Process; Jeopardizing a Worldwide Reputation for Fair Trials

The Washington Times (Washington, DC), July 21, 2003 | Go to article overview
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Military Tribunals Circumvent Due Process; Jeopardizing a Worldwide Reputation for Fair Trials


Byline: Nat Hentoff,THE WASHINGTON TIMES

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.

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