ACLU Fights for Justice At Guantánamo Military Commissions

On Thursday, I will be at Guantánamo Bay watching five men appear before a military commission as they hear the charges read against them. The charges are dire: the men are accused of participating in one of the worst and most tragic crimes of all time — the September 11 attacks. The sentence could be death.

There has been a lot of debate about how these men should be prosecuted. The answer is right in front of us. When our government wants to prove a defendant has committed a crime — even an egregious one — it must ensure that when the final gavel comes down, we can walk away with some assurance that, whether we agree with it or not, the outcome is legitimate. To ensure that legitimacy, the government follows the Constitution. It provides defendants with the right to a lawyer, the presumption of innocence, and due process. It collects its evidence and fights like hell to prove its case "beyond a reasonable doubt" in a court of law, and allows the accused to wage a meaningful defense. That's how we define American justice, it's what separates us from our enemies, and it's how the government should prosecute the detainees at Guantánamo. We do not change the rules depending on who is being prosecuted and what they are accused of — that would defeat the whole purpose. But that is exactly what's happening with the Guantánamo military commissions.

For starters, the government resources allocated to the prosecution and defense are completely lopsided. While the prosecution has the full force of the U.S. government behind it, including the military and the Department of Justice, detainees are usually provided with only two JAG lawyers who might not have death penalty experience.

Although the American Civil Liberties Union has been monitoring the military commissions proceedings since they started in 2004 and continues to do so, it made the decision in April that it could be more effective by stepping in to help balance the scales. Having determined that the best way to fight the system and attempt to correct it is from within, we have put together teams of expert civilian attorneys to join under-resourced military defense counsel. In the case of Khalid Sheikh Mohammed, one of the detainees being arraigned on Thursday who is accused of being the 9-11 "mastermind," Idaho attorneys David Nevin and Scott McKay, as well as Gary Sowards, a capital defense attorney who represented "Unabomber" Ted Kaczynski, will be on the defense team. Nevin, McKay and Sowards are part of the ACLU's John Adams Project, named after one of our nation's founders who committed to the principle of fair trials represented British soldiers accused of killing Americans in the Boston Massacre when other attorneys refused to do so. Renowned capital defender Denise LeBoeuf, founding Director of the Capital Post-Conviction Project of Louisiana, will be coordinating the Project for the ACLU.

The ACLU has allocated $3 million for the first year of the Project, and has set aside $15 million for future expenses. As our tradition of defending due process and the Constitution demand, we will be there fighting these farcical proceedings every step of the way.

The ACLU's efforts have been openly supported by respected figures like Retired Rear Admiral John Hutson, former CIA and FBI Director William Webster, former Attorney General Janet Reno, and families of 9-11 victims. These are people who passionately want justice done, but who also realize the importance of getting it right.

Military defense counsel has welcomed the outside assistance, acknowledging their lack of resources and the necessity of attorneys with death penalty expertise and national security experience. Despite the assistance of civilian defense counsel, the military commissions are fundamentally flawed by their brazen neglect of due process. They allow convictions based on confessions possibly derived from torture, secret evidence a defendant cannot rebut, and hearsay evidence. The government has already acknowledged waterboarding Khalid Sheikh Mohammed. Any Law & Order junkie can tell you there's something deeply wrong with this picture.

The commissions have also become inherently politicized, as is evidenced by the removal of Brig. Gen. Thomas Hartmann from another military commission case for exerting "unlawful command influence." It seems his dual role of supervising the prosecution and providing legal advice to the ostensibly independent "Convening Authority" of the commissions, along with his willingness to use coerced evidence and his desire to prosecute "sexy" cases that would capture the public's attention, didn't even cut it in this biased system.

The military commissions that have been attempted so far have been riddled with false starts and legal challenges to their very legitimacy. Not a single one has been completed. Only one plea bargain has been struck: the nine-month sentence for David Hicks, the so-called "Australian Taliban."

The Bush administration is careening down the wrong path at great cost to America's constitutional principles and international reputation. Instead of jamming these proceedings through before the next election while making up the rules along the way, it should take a hard look at the problems these farcical cases have encountered so far and abandon them before it digs itself deeper into this abyss. There is no reason these prosecutions cannot occur in our tried and true criminal justice system or military courts that follow the Uniform Code of Military Justice, both of which are able to deal with national security issues and come fully equipped with constitutional safeguards.

Why does this matter? Because how we respond to the atrocities thrust upon us on 9/11 says everything about who we are as a nation. The manner in which we seek justice against those accused of harming us will determine whether the United States will be seen at home and abroad as a nation of laws, or as a nation willing to forsake our values at a time when it's most important to uphold them. If we choose the latter, we all lose.

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Thank you for undertaking this massive task. I am completely suspicious of any and ALL of the charges against these men. Many are going to be charged with stuff that was not even a crime when they were detained. Many were turned over for bribe money. And nearly all have been tortured one way or another.
We were told that Zacharias Moussawe was the 20th hijacker. Now we hear that someone else is. So?
Khalid Sheikh Mohammed has been waterboarded. Rumors are flying around the internet that the CIA has his children and either has or has threatened to torture the kids too. KSM has reportedly confessed to every crime that has happened in the last 10 years. Like I believe any of it.
The judge tries to be evenhanded and tells the prosecution to give the defense attorneys access to the evidence (the right of any defendent last I knew) - and the judge is removed from the case.

Yeah, these are all legal prosecutions. Yeah, they are all guilty - guilty of being brown, being in the wrong place at the wrong time, and guilty of not being criminals (most of them aren't).

Todd Armstrong

To Jefferson, Guantanamo must mean the monarchy has returned and the Constitution discarded.
Frederick Douglass would find it status quo.
With his suspension of Habeas Corpus during the Civil War, Lincoln might understand at first but would see a cruel and open ended abuse.
MLK - would be crushed to find out Civil Rights had been set back so far
Thurgood Marshall would think a foreign power had taken over America as evidenced by the trashing of Civil Liberties and the Constitution
To Jimmy Carter, Guantanamo is a disgrace and an impetus for terrorism.

I make hypothetical arguments but I firmly believe they are not a stretch.

They make up a preamble from which to praise the efforts of the ACLU for looking after our Constitution with such strength. It really matters. Hopefully Nov. 4th(?) will bring you reinforcements from our government.

Thank you.


They have NO liberties except death or put away in an unknown prison for the rest of their filthy lives. They murdered Americans who had done nothing to them so do not hand out this extended liberty to them. Their fate is already sealed.

John Congdon

The Declaration of Independence is a fundamental document of American law. It states that all men have certain fundamental rights which are inherent and God given. These rights are NOT derived from the state but that the state is instituted in order to preserve those rights. This WAS the greatness of the United States, however the current operation of this government fot too many years has deviated grossly from what is truly American.

Are we so fear based that we have forgotten who we are? Yes, close to 3000 people were killed (by whom?)in a tragic event. But does that mean we divorce ourselves from being a free and just country and live in continuous fear of a relatively small group of people. We aren't going to make life on earth safe by abandoning our virtue and our bravery. Let's get back on track and stop this ugly manipulation.

Freedom Friend

"KSM has reportedly confessed to every crime that has happened in the last 10 years."

I heard Khalid Sheik Mohammed lied under oath to special prosecutor Patrick Fitzgerald and was involved in some "filmmaking" with R. Kelly. No confirmation on those rumors yet, though. :)


Uh, CMore, you may want to check your conscience. The problem is how do you know in fact that the people at Gitmo are indeed the people involved with 9/11? By taking the word of someone that was coerced by torture? What would you admit under such duress? Of course, maybe you believe as our fearless leaders do that waterboarding isn't torture. This dispite the fact that it has long been labled so by international treaties. Oh, that's right isn't it? King George doesn't have to abide such pesky things as treaties? And if it, waterboarding, truly isn't torture, why don't Dick and George volunteer for a session? And as a side note, where is the person that is indeed responsible for 9/11, Bin Ladin? Oh, yeah, hiding out in the safe haven provided by our good friends (and okayed by King George) in Pakistan.

Ruby Reign

My friend Ronbo has it right.
Do none of my fellow citizens believe in innocence until proven guilty?

We were a nation of laws until recently, now we are a nation of whims of the ruling elite.

The wealthy buy justice (scooter libby)
The poor & brown skinned can't even get legal representation...and they dare to
call this a democracy?

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