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.