Military Tribunals at Guantanamo Bay, Cuba

MARGARET WARNER:

More than 650 terror suspects, mostly Taliban and al-Qaida members, have been held as unlawful combatants at Guantanamo Bay and elsewhere for more than a year without charges or access to lawyers. Late last week, the Defense Department came one step closer to trying some of these non-citizens by military tribunal by naming a chief prosecutor and a chief defense counsel to oversee the cases.

Detainees may be tried for any of more than two dozen war crimes and other terror-related offenses. The cases will be heard by tribunals, called commissions, consisting of three to seven military officers who will act as both judge and jury. Under Pentagon ground rules, each suspect is entitled to a military defense lawyer and a civilian defense lawyer as well, if he wants and can afford one. Defense lawyers' conversations with their clients may be monitored by the government. A suspect can be convicted by majority vote of the commission, but the death penalty requires a unanimous vote. Late last week, the chief prosecutor, Army Colonel Frederic Borch and the chief defense counsel, Air Force Colonel Will Gunn, told reporters they believe the ground rules are fair.

ARMY COLONELY FREDERIC BORCH, Chief Prosecutor:

We have been very careful in this process to do everything to guarantee a fair trial — full and fair trial. And I'm like every other American. Every one who is at the prosecution ought to get a fair trial, and I'm convinced that's exactly what's going to happen at the military commission.

AIR FORCE COLONEL WILL A. GUNN, Chief Defense Counsel:

With the rules as they are presently drafted, I am firmly convinced that we're going to be able to operate in such manner that we're going to be able to provide a zealous defense for all detainees brought before trial.

MARGARET WARNER:

President Bush will ultimately decide which detainees may be tried. Will this process ensure fair trials for the detainees? For that, we're joined by Ruth Wedgewood, a professor of international law at Yale Law School and Johns Hopkins University. She consulted with the Defense Department on the military tribunal rules; and David Cole, a law professor at Georgetown University law center and an attorney for the Center for Constitutional Rights. Welcome to you both.

Ruth Wedgewood, before we launch into the argument, explain how these trials will differ from civilian criminal trials that most Americans are familiar with.

RUTH WEDGEWOOD:

Well, they're military trials, so they don't have a civilian jury. So that's one important difference. They're tried by a panel of officers, one of whom will be the presiding officer, and a trained military judge advocate general to help on the law, and the others can be either lawyers or general officers who sit as fact assessors.

The major differences are the following: It will preserve everything that we know about American trials insofar as it's going to have burden of proof on the government, proof beyond a reasonable doubt, a right to have the defense have to disclose any exculpatory evidence, a right on the part of the defendant to cross examine any witnesses, to call his own witnesses. Where it differs is that, once in a while, there may be some very sensitive particles of information that are either deeply classified or important to the continuing fight against al-Qaida, and in those circumstances, there's a limited right to close the courtroom, and in the worst case scenario to have to even exclude the defendant, but have his military lawyer in there to defend his interests. The second broad difference is that all evidence that's probative will be admissible.

MARGARET WARNER:

So does this sound like a set up that will ensure a fair trial to you?

DAVID COLE:

Well, not quite. To me, I think it's important that we do justice and that we be seen as doing justice because if we're seen as imposing our will through military force, that will only contribute to the kind of anti- Americanism that we've seen around the world. And I think two of the problems with this process are: one, the secret evidence, that Ruth just referred to, that the defendant can be tried on the basis of evidence that he has no opportunity to see; that the lawyer that he chooses has no opportunity to see. And the only thing the military has done is said that the military's lawyer can see it, but then that lawyer can't talk to his client about that evidence, can't talk to the other lawyer about the evidence. And so you could be convicted on evidence that you've never had an opportunity to see. Secondly, there's no independent review. The president picks you as a defendant, and then the ultimate decider on whether you're guilty is the president.

MARGARET WARNER:

Ruth Wedgewood, take each of those objections in turn. First of all, the whole question of this sensitive evidence and the fact that the defendant and his chosen civilian lawyer may be excluded from even knowing what it is.

RUTH WEDGEWOOD:

Well, that's the nub of the problem of putting on trials during war time. In some ways it argues for delaying trial, in fact, until al-Qaida is no longer up and about and dangerous, as it still is. I think people have a sense of reticence that you don't want to have a case that entirely centers or even largely centers on evidence you can't share with the defense counsel, who is chosen by the defendant himself. The defendant has to have his choice of military lawyers, and in an ordinary court martial he'd have a military lawyer as well as civilian. But if push comes to shove, that is the dilemma of putting on a trial at war time. On the question of the privacy of communications with his counsel, there is monitoring for intelligence purposes but it's excluded from use at trial. And on the issue of review, I think there David is misreading the regulations. There is an independent appellate panel which has the right to reverse and remand the conviction for further proceedings if they think a serious error of law has occurred.

DAVID COLE:

Well, there is a review, but it's within the context of the military, and the ultimate reviewer is the president. The point is that there's no independent judicial civilian review, unlike, for example, in the courts-martial that we use to try our own military people. They get a right to independent judicial review, but we're not giving foreigners who we try for similar kinds of offenses any kind of independent judicial review, and I think that ultimately undermines the legitimacy of the process, and we have a concern. We ought to be concerned about the process, both because we don't want to convict the wrong people, and because we don't want to be seen in the world as just imposing our will, rather than doing justice.

MARGARET WARNER:

So David Cole, could a defendant in this kind of case appeal to the federal courts and the U.S. Supreme Court on that basis, say I'm entitled to have an outside civilian court review it?

DAVID COLE:

Well, yes and no. I mean, the tribunal order says there is no judiciary review, but courts have interpreted that to say there's habeas corpus review, but it's a very limited review. The Supreme Court or the federal court that might look at the case would not ask whether the person was innocent or guilty, would not look at the merits of the case, and so, you know, it's ultimately whether you're innocent or guilty is going to be decided by the president and his subordinates, and he is the person who initially puts you in claiming he thinks you're guilty, and then he's the person who ultimately decides whether you're guilty. That's… to me that's the problem, both in terms of perception and the reality of fairness. Some of these people may well be guilty. I imagine that the military will pick the people who are most obviously guilty to start out. But we still need to have a fair set of procedures.

MARGARET WARNER:

Could there be a perception problem internationally, Ruth Wedgewood, on the basis that David Cole just laid out?

RUTH WEDGEWOOD:

I think everyone is aware that these trials will be high profile. The "New York Times" and the "Washington Post" and other good journalists will be covering much of them, most of them. It's an open courtroom, except when it's closed on limited occasions. So there's a real sense, yes, that there's going to be high profile, we're going to be judged by the fairness of what's done. Everyone who's involved in the process will know that and take that to heart. There is a civilian on the appellate panel, I have to emphasize that.

Secondly, I think this is going to be a closely monitored process. Although the Congress heretofore has not ever provided habeas corpus review for the treatment of enemy combatants off-shore, Supreme Court case called Johnson V. Eisentrager from the Second World War, nonetheless Congress has changed the habeas corpus statues. So there's no off the record in life, we know that. And these are going to be conducted by guys whose fitness reports are not going to include these trials, the chains of command are deliberately kept somewhat different.

But where I have to differ with David is that it's been set up so that there is an autonomous nature to the trial process. It's not President Bush saying what he feels like on Thursday. It's meant to be a separate system. That's why it's been so slow in the getting go, that it's taken a year and a half to draft regulations that can make it into something that is am adaptable, but rule bound court system.

MARGARET WARNER:

Do you think, David Cole, that at least having these civilian defense lawyers, does bring in some measure of independence?

DAVID COLE:

You know it might. And certainly the fact that the chief military defense lawyer has already said he thinks the procedures are perfectly fine, points to the need to have some civilian in there who is willing to question the process.

But the way they've set up the conditions for civilian lawyers, I'm not sure anyone is going to sign up to do the work because, first of all, your conversations with your client are going to be overheard, you're not going to be able to see the secret evidence against your client, you're not allowed to talk about the case with anyone without special advance permission from the court. So you can't do any fact investigation without identifying the people you're going to talk to to the court in advance. You can't do any work off-base on the case, and once you're on the base and on the case you're not allowed to ask for any kind of continuance or any kind of delay based on personal or professional reasons. And you're not paid, and you have to pay for your own security clearance. So what lawyer is going to sign up to do these cases?

I think they've written the conditions for civilian lawyers in such a way that they're so onerous that they basically guarantee that this is going to be a family affair. It's going to be military on both sides. And I think for the defendant to be told you could be recommended but you're going to be represented by your captors, the people who have kept new isolation cages for a year and a half without any trial, now you get to have one of these people defend you. Thanks a lot.

MARGARET WARNER:

Do you think, Ruth Wedgewood, any civilian trial lawyers will take this on under those conditions?

RUTH WEDGEWOOD:

Oh, I think so. It's going to be a new process. From a lawyer's point of view, it's going to be an interesting process. It's going to be… just as the trial of Milosevic in the Hague is a trial which everyone is interested, so, too, people will be interested in this. David shouldn't be surprised at some of the precautions that are necessary. You're in the middle of a struggle against al-Qaida, and a defense lawyer who's going to be brought very much into the family and has to therefore have some of the same precautions that people do about sharing information on sensitive parts of the investigation. But I think David, as we professors often do, underestimates the curiosity of civilian lawyers who will want to be part of the process and will want to contribute to make it there.

MARGARET WARNER:

And, Ruth Wedgewood, how soon, one, do you think we'll start to see one of these trials? And also, how many of these more than 600 detainees do you think will actually be put through this process?

RUTH WEDGEWOOD:

Well, many of the detainees are likely to simply be interned for the duration of the hostilities, as you are permitted to do under the law of war. That if you're caught on the battlefield while the battle is still going on until the end of act of hostilities, you are… but ultimately I also think we're going to have some problems with the European allies or others that as time goes on, they're going to need some kind of procedure with which to continue the hold people. Whether that consists of a trial processor some kind of status review and determination remains to be seen.

DAVID COLE:

Well, I think this is the real problem. The military is going to pick, as Ruth suggested, the easy cases — a few people. They're going to be show trials essentially. And the vast majority of people on Guantanamo who have been held for a year and a half have never been provided any hearing whatsoever, and they'll be the hard cases, the cases where we're not sure if they're guilty or innocent and they're given no hearing what so ever.

MARGARET WARNER:

All right, David Cole, Ruth Wedgewood, thank you both.