ACLU And NACDL Assembling Guantánamo Defense Teams

April 3, 2008 12:00 am

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Military Commissions System Poses Grave Threat To Civil Liberties And American Justice

NEW YORK – In order to protect American values of fairness and justice and the constitutional guarantee of due process, the American Civil Liberties Union, together with National Association of Criminal Defense Lawyers (NACDL), announced today that it is assembling defense teams to be available to assist in the representation of detainees facing prosecution in the military commissions proceedings at Guantánamo Bay, Cuba. The Guantánamo military commissions process – which allows detainees to be convicted on the basis of secret evidence, hearsay, and confessions derived from torture – is an affront to civil liberties and a stain on America’s reputation around the world.

“The ACLU and NACDL do not agree with how the government is conducting these commissions. And although our involvement cannot cure the fundamental flaws of this process, we are stepping into the ring to make the proceedings as fair as possible because we believe strongly in defending fundamental American values and challenging the government’s attempts to stack the deck in its favor,” said Anthony D. Romero, Executive Director of the ACLU. “Our nation has been at a critical juncture since September 11 and we continue to mourn that loss. But how we respond to the atrocities thrust upon us on that terrible day says everything about who we are as Americans – whether we choose to be a nation of laws and justice or arbitrary rule.”

The ACLU, in partnership with NACDL, is assembling defense teams to supplement the single military lawyer assigned to each detainee by the government, subject to the clients’ consent. As only one of four organizations that have been granted status as human rights observers at Guantanamo Bay, the ACLU has attended every hearing since they began in 2004. Over that time, a growing number of lawyers, legal scholars, government officials, military personnel and others have raised concerns about prosecuting detainees under a system that ignores the fundamental tenets of due process and allows the admission of highly questionable evidence – particularly evidence possibly obtained through torture. According to the ACLU, these cases belong in a civilian court of law or a traditional military court operating in accordance with the Uniform Code of Military Justice that upholds due process and in which judges and attorneys are held to constitutional obligations and accountable to the rule of law. The ACLU is in the process of attempting to secure access to the Guantanamo defendants and obtain their consent for our participation.

President Bush issued an order in November 2001 establishing military commissions to prosecute individuals he deemed enemy combatants outside the American justice system, and the first proceedings took place in 2004. Although the Supreme Court struck down the commissions as unconstitutional and inconsistent with the Geneva Conventions in Hamdan v. Rumsfeld, Congress later passed and President Bush signed into law the Military Commissions Act of 2006 authorizing a modified system of military tribunals that grants the government the authority to prosecute detainees without many of the constitutional protections required by U.S. civilian courts and traditional military courts governed by the Uniform Code of Military Justice.

“The procedures of the military commissions proceedings raise serious questions about the government’s commitment to constitutional principles that are the bedrock of American liberty,” said Norman L. Reimer, Executive Director of NACDL. “A vigorous and properly resourced defense is essential to contest these proceedings.”

Supporters of the ACLU and NACDL’s efforts include a pantheon of respected military and civilian leaders such as former Attorney General Janet Reno, former CIA and FBI Director William Webster, Retired Rear Admiral John D. Hutson, Lt. Colonel Stuart Couch, and families of 9/11 victims. Below are excerpts from their statements of support:

Former Attorney General Janet Reno: “The ACLU and NACDL’s efforts to ensure that fundamental American legal protections and principles are preserved in these cases are certainly worthy of support.”

Former CIA and FBI Director William Webster: “This is in the highest tradition of American values.”

Retired Rear Admiral John D. Hutson: “I hope my fellow Americans will support the ACLU and NACDL as I do in asking the government to grant these detainees fair trials that follow the principals of due process provided in our Constitution. Let’s bring this process into the light of day and restore American justice as we know it to be…”

Patricia Perry: “My son — NYPD Officer John William Perry was killed on 9/11 while helping people escape the World Trade Center…. our family and his many friends believe that John would fully support the ACLU in this decision to fight the injustice taking place at Guantanamo.”

September 11th Advocates Patty Casazza, Monica Gabrielle, Mindy Kleinberg and Lori Van Auken: “On behalf of ourselves, our husbands, and our families, we support the American Civil Liberties Union in its pursuit of justice and insistence on due process. The only outcome worth pursuing is the truth, and the only way get there is by fair trials that uphold the Constitution.”

Lt. Colonel Stuart Couch: “The issue of detainee treatment touches and concerns every case that will be brought for prosecution before military commissions, and all participants in the process should be equipped to deal with it in ways that are consistent with our American values of fair play and justice.” (from ABA 2007 Norm Maleng Minister of Justice Award Speech)

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