ACLU Fights For Justice At Guantanamo

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.

Comments

[Waterbug]

Thank you, Mr. Romero and all your colleagues at the ACLU. The work you do is critical to our Democracy and models the way of honorable service. The ACLU tirelessly honors the Constitution, preserves our freedom, and champions equal rights and justice for all! You are true heroes.

You've helped save us from some of the Bush onslaught, which has been like drinking from a firehose. There's so much more work required to undo the damage. I am glad to help the ACLU because I know every little bit counts.

Note to other ACLU fans -- I am able to donate to the ACLU Foundation quarterly through payroll deduction. This is very convenient -- no fuss, no muss. In addition, my company matches my donation because the ACLU Foundation is a 501(c)(3) non-profit organization, which doubles the impact! (I also get a tax deduction for my part of it -- sweet!) I strongly encourage you to contact your benefits department to see if your company has a similar program or if you can jump start an effort to make this happen.

[pmorlan]

My thanks to everyone involved in the effort to get our government to follow the Constitution. You are TRUE patriots and all of us owe you a debt of gratitude. There will be millions of us following these cases closely through the minimal media coverage and the more substantial coverage on the internet.

[realpolitic]

Only Bush would hold these trials just before an election. Of course, Republicans would say it is cynical to connect the two. Sure! Only in a surreal Bushian world can confessions obtained by torture be used as evidence of guilt. Hopefully, some judge will again throw these trials out of the system until we can try these people under a fair process, like the Uniform Code of Military Justice.

[Topfeeder]

Gitmo is a stain on America. Thank you for your efforts to clean house.

[UnbiasView]

And we should do what with the people at Gitmo?

[itolduso]

I personally would like to see Gitmo closed and the inmates transferred to any one of the "SuperMax" prisons that have sprouted all over America in the past decade. Maybe if they were there than the ACLU would start fighting the cruel and inhumane practice of keeping people in total isolation for years. There are men in Illinois Super Max that have been there over a decade-in 23 hour a day lock-down-­completely cut off , with almost no physical contact with other human beings, not even the guards. No phone calls, severe restrictions on visitation, and even then, seperated by glass. No work details, very limited exercise-alone in a walled in area-no outside view. The government has known for decades that prolonged isolation will drive a man insane, yet they designed these prisons to do just that-and it's working- prisoners are biting and cutting themselves, banging their heads against the walls, attempting suicide at alarming rates, and exhibiting extreme & severe signs of psychosis and mental illness. And one day they will be released. Gitmo looks like ClubMed compared to SuperMax.

[realpolitic]

Bring them to the United States and try them in military courts that follow the Uniform Code of Military Justice or hand them over to the Hague for war crime charges. A country can not detain prisones forever in a war without end. The trials reflect far more on the United States as a whole then they reflect on any specific prisoner.

[vietveter]

What are we fighting for if not for the fair treatment of all.

Shame on this administration and the chickenhawks that run it.

[UnbiasView]

You must have forgotten that non-citizens do not have the same rights as citizens and the people at Gitmo are not part of any army.

[SamEllison]

The Jews of the Warsaw ghetto were non-citizens of Germany.
Your point is?

[zizyphus]

Thank you for your tireless efforts in behalf of our constitutional rights, Mr. Romero.