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Noted 20th century author Mary McCarthy once famously observed that “every age has a keyhole to which its eye is pasted.”1 What Americans see when we peer into that keyhole is often a pivotal Supreme Court case that defines who we are as a nation: Marbury v. Madison, Dred Scott, Plessy v. Ferguson, Korematsu, Youngstown Sheet & Tube Co. v. Sawyer (the steel seizure case), United States v. Nixon, Bush v. Gore, and Brown v. Board of Education — each of these cases for better or worse revealed the true character and content of the republic at a point in time. The Supreme Court’s recent 5-4 decision in the third of the Guantanamo trilogy, Boumediene v. Bush, may, in the fullness of time, take its place in that pantheon.2 (See NACDL News, page 10.)
In Boumediene, the Court struck down the provisions of the 2006 Military Commissions Act that deprive detainees at Guantanamo of the right to bring habeas corpus petitions challenging their imprisonment.3 The decision rebuked both political branches of government, vindicating an explicit right delineated in the main text of the Constitution.4 Writing for the bare 5-4 majority, Justice Anthony Kennedy said:
The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled … within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be part of that framework, a part of that law.5
This powerful, albeit narrowly decided, vindication of the Constitution was issued just seven days after the Guantanamo arraignment of five “high value detainees.” These alleged 9/11 plotters are slated to be tried before a military commission that will be asked to render a death sentence. While Boumediene may eventually thwart the government’s plans by opening the door to judicial review of the treatment of these prisoners and the legality of their confinement, make no mistake about it: the military commission process that is unfolding at Guantanamo is a farce. It is shaping up as nothing more than a publicity stunt, a kind of show trial emblematic of regimes that eschew the rule of law, zealously pursuing a pre-determined end in utter disregard of means.
As lawyers feverishly grapple with the ramifications of Boumediene, it is important to take a look at what has been happening at Guantanamo. Beyond the blood-curdling accounts of government sanctioned brutality that have preceded the formal proceedings, there lurks a process that should arouse the conscience of every American lawyer.
First, under the Military Commissions Act, the trial will bear little resemblance to either a court martial or a federal criminal trial. Secret evidence that the accused may neither see nor confront is permissible. Hearsay, including the rankest form — the product of coerced custodial interrogations of third parties — is admissible. Inculpating statements by the defendants themselves may be used even if the statements were the product of coercion, including the use of what the government calls “enhanced” interrogation techniques, such as waterboarding, but what most civilized people recognize constitutes torture.
So much for the evidentiary context. Next consider the resources that are provided by the Military Commissions Act. Each detainee is entitled by law to one military lawyer. The statute does not provide for any additional counsel, let alone one qualified to handle a death penalty case; nor does it provide for the minimally acceptable defense team required by the ABA guidelines that govern capital cases and which have been endorsed by the Supreme Court.6 In fact, although the JAG lawyers assigned to the five detainees are women and men of great dedication and courage, they are quite candid in acknowledging that they are not qualified by training or experience to handle a capital case, especially one the government has been preparing for years, and in which no other resources are being made available for mitigation. It is for this reason that the ACLU and NACDL are offering experienced civilian counsel and ancillary services to assist the JAG lawyers.7
Worse than the stacked rules and the shamefully inadequate defense resources is the process. From the first appearance on June 5, 2008, it is plain that the government has no intention of providing anything that resembles a fair trial. The detainees were confined incommunicado for up to six years under extreme conditions, the full details of which the public may never know due to the government’s classification policies. Nevertheless, they were deprived of access to any lawyer until just days before their arraignment.
Despite the fact that what the detainees tell their lawyers is deemed so Top Secret that the lawyers cannot disclose it, the detainees — co-defendants — were conveniently permitted by the authorities to confer among themselves prior to their presentment. Then, in three of the five cases, the presiding officer accepted a waiver of the right to counsel after a cursory voir dire. Impassioned pleas for more time to discuss the case with the clients were ignored. Imagine a court in a death penalty case — in which the government has had exclusive control of the accused for years and has subjected him to endless interrogation and who knows what physical and psychological abuse — accepting a waiver of counsel at the first appearance, and after counsel has had perhaps one or two opportunities to meet the defendant!
That’s not all. Consider the schedule that was set at the first appearance. The military judge, Col. Ralph H. Kohlman, who, as chief judge of the commissions, appointed himself to this case, directed that all defense law and discovery motions must be filed by July 11th, all evidentiary motions by July 18th, and set a trial date in September. This would be an impossible and unreasonable schedule in any routine multi-defendant criminal case. It would be unheard of in a murder case. It would be as unconscionable as it would be unthinkable in a capital prosecution. And here we are confronting a case the government has characterized as “the most investigated case in the history of the United States.”
But wait, there’s more. Consider that, due to classification restrictions, discovery can be reviewed only in a Secure Compartmentalized Information Facility (SCIF). Consider also that the SCIF at Guantanamo is too small to accommodate the defense teams and that it is available only from 7:00 a.m. to 6:00 p.m. Also, bear in mind that even when traveling to Guantanamo on a special military flight, it took the lawyers 13 hours (one way) to see their clients. When special flights are not available, travel each way consumes two days.
In addition, communications facilities for the defense are wholly inadequate. Lawyers have at best sporadic access to the Internet in the Guantanamo facilities. Indeed, the best hope to secure an Internet connection is the WiFi at the base Starbucks. Further, recent regulations make all communications — including privileged communications — from a government computer subject to review by the government. (See NACDL News, page 10.) The tribunal requires electronic filing and will not accept hard copies; yet, efforts by attorneys to file their appearances were hampered because no scanners were provided and there was no Internet connection available to them.
The most pervasive obstacle to mounting a defense is the government’s manipulation of the classification restrictions to gain unfair advantage and impede the defense. Everything a client tells counsel is presumptively classified, and much of the discovery relevant to the defense will be classified as well. How does a lawyer prepare a defense or investigate a capital case, with the need for extensive investigation of mitigation, if the lawyer cannot discuss the evidence or the client’s version of events? While specific statements may be declassified upon request, the official who must process this request has not been appointed. And, remember, classified information can be discussed only in the SCIF and attorney notes on the classified information cannot be removed from the SCIF. Imagine trying to prepare a case for trial under these conditions.
This then is just a hint of the travesty that is brewing at Guantanamo. With the goodwill and global support that America enjoyed in the wake of 9/11 squandered, and the reputation of our country hanging in the balance, it remains to be seen what future generations will see when they look through the keyhole of history and see Boumediene. Will this case be one that reveals the true character and content of our republic? Will it be that defining moment when America heeded Justice Kennedy’s plea on behalf of a bitterly divided Supreme Court to ensure that the laws and Constitution “survive and remain in force, in extraordinary times?” Time will tell. Of this we can be certain: the ACLU and NACDL, and the heroic defense lawyers who have answered the call of duty, both civilian and military, are bona fide champions of liberty. They understand that the zealous defense of the least popular accused is nothing less than the defense of freedom itself.
Notes
- The quote is the opening line from Mary McCarthy’s 1953 essay My Confession, in which she wrote about American fascination with communism just before that fascination was subsumed by the obsession that tyrannized the nation.
- Boumediene v. Bush, No. 06-1195, 2008 WL 2369628, ___ U.S. ___, (June 12, 2008; Rasul v. Bush, 542 U.S. 466 (2004) and Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
- Military Commissions Act Sections 7(a) and (b).
- U.S. Constitution, Article I, Section 9 [2].
- Boumediene, 2008 WL 2369628 at *47.
- ABA Guidelines require that a defense team include no fewer than two attorneys duly trained and experienced in capital defense, an investigator, a mitigation specialist and at least one team member qualified by training and experience to screen for the presence of mental or psychological disorders or impairments. ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, Guideline 4.1 “The Defense Team and Supporting Services,” see also Guidelines 5.1, 8.1. 10.4.
- NACDL is partnering with the ACLU in “The John Adams Project,” an effort to augment the woefully inadequate defense resources provided for the detainees under the Military Commissions Act. For more on the project, visit www.aclu.org/safefree/detention/johnadams.html.