National security vs due process.
By Edward Alden.

Criminal defence lawyers pride themselves on defending the worst of the worst. "The Nazis were represented, the communists were represented, the Rosenbergs were represented," says Lawrence Goldman, a veteran New York lawyer who heads the National Association of Criminal Defence Lawyers. "I will never turn down a client because of what he or she was accused of."

But last week Mr Goldman issued a surprising recommendation to the association's 11,000 US criminal lawyers: if asked to defend the accused terrorists who will be brought before the first US military commissions since the second world war, he said, they should decline.

"In view of the extraordinary restrictions on counsel, with considerable regret we cannot advise any of our members to act as civilian counsel at Guantanamo," he wrote, referring to the nearly 700 detainees held at a US military base in Cuba as unlawful enemy combatants. "The rules regarding counsel's behaviour are just too restrictive to give us any confidence that counsel will be able to act zealously and professionally."

Since President George W. Bush this month declared that six of the more than 700 suspected terrorists held in the war on terrorism would be eligible to be tried by military commissions, tough questions are being raised about whether any of them will see what the world can regard as justice.

The UK government is calling for changes to the trial rules to protect the rights of Feroz Abbasi and Moazzam Begg, two British citizens, who were among the six identified. Tony Blair, the UK prime minister, arrives in Washington on Thursday to meet Mr Bush and the issue is expected to top his agenda. In Australia, there is widespread public concern about the treatment at Guantanamo Bay of David Hicks, a 27-year-old from Adelaide, and the prospect that he could face the death penalty after what would be seen as an unjust trial. Mr Hicks, who has been detained for almost 18 months, will also be one of the first to face trial.

US domestic critics have been no less pointed. The military commissions are "both dangerous and misguided", says Harold Hongju Koh, a Yale law professor who served in the State Department during the Clinton administration. "[It is] dangerous because secret commissions impair accountability and convey the unfairness to the rest of the world, and misguided because it falsely suggests that regular American courts are incapable of administering justice to those who grossly violate international law."

It was that conclusion - that the US courts are indeed incapable of bringing accused terrorists to justice - that led Mr Bush to announce in November 2001 that terrorist suspects captured in Afghanistan and elsewhere would be tried before specially constituted military courts. His executive order stated that the threat posed to the US by international terrorism was so grave that "it is not practicable to apply ... the principles of law and the rules of evidence generally recognised in the trial of criminal cases in the United States".

Since then Pentagon lawyers, with help from outside advisers, have crafted what amounts to a new set of legal procedures to handle those trials. The rules have been published piecemeal over the course of this year, culminating with the announcement on July 3 that Mr Bush had designated six men as eligible for trial. Pentagon prosecutors must still decide what charges to bring against the men, at which point Paul Wolfowitz, the deputy defence secretary, will appoint a commission to handle the first trials.

Supporters of the military commissions say there is simply no other way to try members of the al-Qaeda network. George Terwilliger, a deputy attorney-general in the first Bush administration, who was an early advocate of the tribunals, says that "it's silly to suggest that an organised, irregular force that attacks the US" should be given all the rights of ordinary criminal defendants.

The rules of the commissions differ from civilian courts in at least three vital respects. Advocates say these differences are crucial for prosecuting terrorist suspects while defending national security but critics say they will make a fair trial all but impossible.

First, while US criminal courts do have procedures to allow some secret evidence, criminal defendants are normally given full access to witnesses and to evidence against them.

That requirement has haunted the government in its case against Zacarias Moussaoui, a French citizen suspected of plotting closely with the September 11 2001 hijackers, who was apprehended on US soil and charged before a criminal court in December 2001 without the Pentagon's being consulted. Mr Moussaoui and his court-appointed lawyers have demanded depositions from Ramzi bin al-Shibh, a top al-Qaeda prisoner who the US alleges was the link between Mr Moussaoui and the September 11 hijackers.

The government has warned that it faces the "choice of disclosing highly classified information to an avowed al-Qaeda terrorist or having charges dismissed". It has said that allowing outside access to Mr bin al-Shibh could disrupt a sensitive interrogation that might expose future al-Qaeda plots.

The district court in Virginia has acknowledged that the case raises an issue of "extraordinary importance": the "direct conflict between a criminal defendant's right 'to have compulsory process for obtaining witnesses in his favour' and the government's essential duty to preserve the security of this nation and its citizens". It has sided with Mr Moussaoui, ordering the government to produce Mr bin al-Shibh.

Washington on Monday defied that court order and has warned that if it loses an appeal on the issue, it may end the trial and declare Mr Moussaoui an enemy combatant. The government has already done so in a separate case involving Ali Saleh Kahlah al-Marri, a Qatari who was about to go on trial on charges of fraud and lying to the Federal Bureau of Investigation and who is now languishing in a South Carolina military prison.

In creating the military tribunals, the government has attempted to ensure such problems do not arise. "We don't want the legal process to be the tool they use to successfully carry out another attack," says Major John Smith, an air force officer and lawyer who is working on the military commissions for Mr Wolfowitz. "Al-Qaeda is a learning organisation. Any intelligence they can gather from us they will incorporate."

Commission rules instead greatly restrict defendants' ability to learn the evidence against them. The government will appoint military defence lawyers who will have access to the full range of witnesses and evidence; but they cannot share classified material with the accused. And while detainees can choose to have civilian defence lawyers - at their own expense - those lawyers may also be denied access to secret or sensitive information.

The second significant difference regards the use of evidence. In civilian courts, evidence can be admitted only if it is of a high standard of authenticity. The commissions will use a lower standard of "probative value to a reasonable person". That will allow a range of evidence to be introduced that a civilian court would probably reject as hearsay or rumour, and allows documents to be considered even when their origin cannot be fully verified.

The problem is another that has bedevilled the US in attempting to prosecute terrorism cases in civilian courts. Earlier this year, the director of a Chicago-based charity, Benevolence International, pleaded guilty to defrauding donors and was sentenced to 15 years in prison. But US prosecutors had hoped to prove in court that Enaam Arnaout, the director, was in fact an important fundraiser for al-Qaeda and a close associate of Osama bin Laden. Instead, the court threw out all but a handful of the government's 240 exhibits, ruling that most were "hearsay" based on unverified statements from co-conspirators. Most of the evidence had come from a raid on the charity's offices in Bosnia. The court's decision forced prosecutors to accept a plea bargain by Mr Arnaout on much lesser charges.

Major Smith argues that the evidence gathered in the war on terrorism cannot reasonably be held to civilian rules. "There's a difference between a battlefield environment and a standard criminal enforcement process," he says. "If someone's shooting at you from a cave, you're not going to go to a judge to get a search warrant."

Last, unlike in a civilian court, the detainees will have no right to trial by a jury of their peers. Instead, a panel of military officers will judge their guilt or innocence. A two-thirds decision by the panel will be sufficient to convict, not the unanimity required by a US criminal court (though unanimous decisions will be required for the death penalty). And no appeal is allowed to courts outside the military chain of command.

Critics such as Mr Goldman argue that the rules established by the Pentagon make a fair trial virtually impossible. "The Department of Defence has set up barrier after barrier after barrier against effective representation," he says. "I personally would not want to dignify what is not in my view a legitimate court." He says that by forcing the detainees to stand trial before military officers, the US has all but ensured their conviction. "It's not a very fair jury for someone who's accused of a crime against the military. It's not going to be a great career move if any of them votes 'not guilty'."

But the hostile panels may not be the worst of it. The rules allow the Pentagon to monitor all lawyer-client conversations in the search for intelligence. While the prosecution cannot use that information, it is likely to stifle the free discussion that is critical to mounting a successful defence. Nor will lawyers be allowed to complain about this to the press - the Pentagon must approve all contacts with the media.

Finally, Mr Goldman says, the government has made it impossible to seek a second opinion. When President Franklin Roosevelt set up a military tribunal in 1942 that sentenced six German would-be saboteurs to death, the suspects' military lawyer appealed to the US Supreme Court, challenging the tribunal's jurisdiction. (The court dismissed the appeal.) Lawyers for the Guantanamo detainees must agree not even to make such an effort.

So far the Pentagon has largely ignored the complaints from the civilian bar. But a widespread boycott of the tribunals by civilian defence lawyers would pose serious problems for the credibility of the trials. The National Institute of Military Justice, a military lawyers' group, said last week that "whatever else may be said of the military commissions, public confidence in the administration of justice would be ill-served by a boycott by the civilian bar".

The controversy over the tribunals has exposed how divided Americans - and even more so the rest of the world - remain over the losses of civil liberties and due process that Washington says must be tolerated in the name of the war on terrorism.

The administration and its supporters argue that the tribunals are simply part of a long practice of creating special military procedures for trying those accused of violating the laws of war. Mr Terwilliger says that those who struck the US "are not primarily criminals but primarily warriors, and should be treated as such".

The Supreme Court has on several occasions, including the 1942 trials against the Germans, ruled that the administration can establish such courts during a war. That decision, known as the Quirin decision, specifically noted that military tribunals are appropriate for "an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property". Citizen Soldier, a pro-military lobbying group says: "Obviously, terrorists fit this definition precisely."

The US can also take some comfort from international opinion surveys, which show that, despite protests from the UK and Australia, there is little sympathy for accused terrorists. Last year Gallup International released a 36-country survey in which people were asked whether terrorists should have the same rights as other criminals. Two-thirds said No, including strong majorities in Asia and Europe. Only in Africa, where 51 per cent said terrorists should have the same rights as others, was there much disagreement. The subsequent war in Iraq may nevertheless have increased anti-Americanism.

But the trials nonetheless fit uneasily with a long US tradition of dealing with terrorist cases before the civilian courts. The Lawyers' Committee for Human Rights, a US group, charges that the administration is trying to "shoehorn crimes such as terrorism and hijacking, which have always been considered civilian crimes, into the rubric of military jurisdiction". It argues that such crimes have never been recognised as war crimes under international law.

The more serious damage, critics say, will be in US efforts to export its brand of justice to the rest of the world. The Bush administration will launch later this year, for instance, an important initiative aimed at reforming judicial procedures in the Middle East.

"We undermine our own credibility with the rest of the world when we commit human rights abuses at home in the name of fighting a war against terrorism," says Mr Hongju Koh, of Yale Law School. He points out that the US has regularly criticised even close allies such as Egypt over its use of military courts, even though the US process will have many of the same flaws.

"By resorting to such practices," he says, "we encourage other countries to commit similar abuses in the name of fighting terrorism, and undermine our own ability to protest when they do."

[Source: By EDWARD ALDEN, Financial Times, 15 July 2003]

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This document has been published on 03ago03 by the Equipo Nizkor and Derechos Human Rights, in accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.