FORUM

[Editor's note: Professor Jones has applied for and received provisional recognition as Qualified Civilian Defense Counsel, making him eligible to appear before US Military Commissions established to try terror suspects. This column is the second in an exclusive series Professor Jones is writing for JURIST on his experiences.]

An old and undeserved cliche states, “military justice is to justice, as military music is to music.” If that is the case, military music must be pretty good. Still, stereotypes dies hard and sometimes they are unnecessarily perpetuated by civilians.

In an August 22, 2003 editorial entitled, “Injustice in Guantanamo,” the New York Times leveled some pretty serious charges against the Department of Defense for its treatment of the suspected Al Qaeda and Taliban detainees at Guantanamo (GITMO) Naval Base, Cuba. First, according to the Times, “the delay in holding trials, and releasing the innocent, is unacceptable.” Second, the Times asserts that “the procedures the administration has outlined for conducting their trials” are just as unacceptable. The first assertion is practically indisputable. Indeed, it has been nearly two years since the first of the approximately 660 detainees arrived at GITMO and yet only six have even been designated as eligible for trial before military commission.

"Designation" means that the President has “reason to believe” that the six non-U.S. citizens are members of Al Qaeda, or have engaged in, aided, or abetted acts of acts of terrorism (anywhere in the world and for whatever cause) against citizens, the national security, foreign policy, or economy of the United States. See, Military Order of November 13, 2001: Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism, 66 F.R. 57831, 57834 (Nov. 16, 2001). This seems an astonishingly broad assumption of jurisdiction but that is an issue for another time. Designation might be viewed as akin to the police charging someone, or a victim swearing out a complaint, in the domestic civilian criminal justice system.

After designation, military prosecutors determine and draft whatever charges are appropriate and present those charges to the “appointing authority.” Procedures for Trials By Military Commissions of Certain Non-United States Citizens in the War Against Terrorism, 68 F.R. 39373, 39376 (July 1, 2003). The appointing authority for this purpose is Paul Wolfowitz, Deputy Secretary of Defense. Dr. Wolfowitz must then review, and approve or disapprove of the charges. Id. If he approves the charges, he must appoint a three to seven member military commission (to include a judge advocate to act as the Presiding Officer, ruling on evidentiary and procedural matters) before which the detainee would stand trial. See, Id. at 39376, 39375 (discussing the composition of the military commission and the qualifications and duties of the Presiding Officer). To date, nothing has happened beyond the mere designation of six out of 660 detainees. Start-up concerns, no doubt, have slowed the initial process but at this rate (designating six detainees every two years) it will take 220 years before the present number even get to trial. To say that the delays are unacceptable is an understatement, at best. In a July 3, 2003 Pentagon press briefing, though, one military lawyer stated:

As you can tell, in the past we’ve been proceeding very methodically and deliberately and carefully and I think that will continue to guide the military commission process. In that regard, it probably wouldn’t be prudent to set any kind of a timeline because the criminal justice system should not be driven by timelines, they should be driven by the facts of the case . . . So I think that’s the reason we wouldn’t want to set ourselves to a timeline. We want to look at each individual case on a case-by-case basis and do the right thing.

Let’s set aside, for the moment, the more familiar and obvious reasons why a two year uncharged, practically incognito detention is unacceptable. The idea that “timelines” are irrelevant to a criminal justice system is entirely foreign to United States civilian and military justice as it has always been practiced. Timelines are considered prudent first because the constitution mandates a time line and second because of practical necessity and basic fairness. Indeed, the careers of Staff Judge Advocates (the “SJA” is the military equivalent of a U.S. Attorney, having primary legal responsibility over a particular military installation) rise and fall on “processing time.” Processing time refers to the period of time beginning on the date charges are filed and ending when the appointing authority signs the military court’s dispositon of those charges (after which a convicted accused's case is subject to review by two other civilian courts). Long processing times are not good because, as the military recognizes, long delays are unconstitutional (and there is no reason why the speedy trial rule should not apply in the military) as well as disruptive to the unit, its mission, and the life of the accused. Each of those practical considerations are of equal import. Long processing times are particularly bad for an SJA who is competing for the rare promotion beyond the rank of Colonel. This is so well known that Trial Defense Counsel oftenimes succesfully offer to proceed to trial expeditiously and take responsibility for any delay time (if delay is attributable to defense counsel’s request for continuance, it does not count in the computation of the SJA’s average processing time) in exchange for a more lenient plea bargain. The facts determine the outcome of a criminal trial, sure enough. But life is short and time waits for no man. Justice delayed is justice denied. The military’s traditional focus on “processing time” recognizes this. In any event, it appears that the delay is attributed to the civilian leadership within the Department of Defense because none of the 660 detaines have been referred to military commission.

The second Times objection - i.e., that the process is fundamentally flawed -- is demonstrably incorrect. And the Times is not the first to make that assertion. They are, instead, repeating a charge put forth by the American Bar Association. Recall, from my last missive, that the ABA and most other bar associations prefer to criticize from afar, not wanting to get their hands (not to mention their wingtips and pinstripes) dirty in the messy business of providing due process even to a nation’s downtrodden enemies. Let’s look at the bar’s criticisms as repeated by the Times. The first criticism is that the trials “may be held in secret and lawyers can be prevented from speaking publicly about the proceedings.” The second criticism is easiest. Judges of every ilk routinely issue gag orders - there is nothing new about that nor does preventing lawyers from yapping about a case (primarily to affect public opinion, let’s face it) necessarily dictate an unfair result. Try getting a sound bite from Kobe Bryant’s attorneys right about now, or from the attorney representing Scott Peterson.

The first objection, though, is not so easily dismissed. Secret trials are indeed anathema to our sense of justice. But the rules adopted for Military Commissions only allow for closed sessions, they do not mandate closed sessions and the accused military counsel can never be excluded. Procedures For Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism, 66 F.R. 39377 (July 1, 2003). Closed sessions are provided for in all U.S. jurisdictions. Moreover, the Pentagon has interpreted the President’s directive to provide a “full and fair trial” as one practically mandating “open proceedings” as the default model except under certain defined situations. See, Military Order of November 13, 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 F.R. 57831, 57835 (Nov. 16, 2001) (President’s order to provide a “full and fair trial”); Procedures For Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism, 68 F.R. 39373, 39376-39377 (“The Accused shall be afforded a trial open to the public.”). “Open proceedings” presumes attendance by the public and accredited press, and public release of transcripts at the approriate time.” Procedures For Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism, 68 F.R. 39373, 39377 (July 1, 2003). More particularly, Military Commission Order No. 1, states “proceedings should be open to the maximum extent practicable.” 68 F.R. 393273, 39376 (July 1, 2003). Granted, the appointing authority and the commission has discretion to exclude camera’s but so too do civilian judges have that authority. In any event, the military lawyers responsible for ensuring fairness themselves recognize and express a clear preference for open proceedings, as indicated by the following response by a military lawyer to a reporter’s question at a May 22, 2003 Pentagon press briefing:

Recently, I was reading an excerpt of an article by Lloyd Cutler, who was the youngest defense counsel -- or youngest prosecutor in the in re Quirin case, where we had the German saboteurs during World War II; they came ashore, and eventually met a military commission. And he was talking about the military commission process that was being developed at the time that he wrote the article. And he was also talking about that process, and he commented on the fact that a great deal of it was -- well, all of it was conducted in secret, and the press was merely briefed on it. And he looked at it as a mistake. I agree with that; that to the extent that this process is as open as possible, within the constraints of national security, that's going to be in the best interests of not only the detainees, but more - from a broader standpoint, I see that as in the best interests of the nation as a whole, because this process is going to be judged not so much by virtue of whether or not a particular detainee was convicted by military commission, it will be judged from the world community by virtue of whether or not the process was fair and just. And as a result of that, you in the press play a vital role in helping to accomplish that.

Clearly, military lawyers are most concerned about openness and legitimacy. That the process allows for, but does not mandate closed hearings is no more basis to condemn the military commisson procedures than it would be to condemn the federal civilian system wherein federal judges possess the same authority.

Another piece of evidence put forth by the bar and repeated by the Times is that “the government reserves the right to deny detainees and their civilian lawyers access to the evidence being used at trial.” This is a correct summary of the law, but by itself it leaves the incorrect impression that the prosecution will have the advantage of trial by secret evidence. The rules further state that the prosecution must provide defense counsel (civilian and military) with access to all exculpatory evidence as well as any evidence the prosecution intends to introduce at trial. Procedures For Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism, 68 F.R. 39373, 39376. While the rules allow the prosecution, upon motion (to which the defense may object) and order, to withhold evidence “concerning national security interests,” (“protected information”), they further state that any evidence withheld from an accused’ military lawyer will be inadmissable. Procedures For Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism, 68 F.R. 39373, (July 1, 2003). That is, evidence cannot be withheld from military counsel unless it is also excluded from trial. The rules further provide that civilian defense counsel will not divulge protected information made available to her in closed session. Qualification of Civilian Defense Counsel, 68 F.R. 39394 (July 1, 2003). Clearly, this mandate contemplates that it will be the very rare and unlikely case that civilian defense counsel will be excluded from closed sessions, particularly since all civilian defense counsel will have the proper security clearance (as is required of all civilian defense counsel). See Qualification of Civilian Defense Counsel, 68 F.R. 39392, (July 1, 2003). (Civilian Defense Counsel must be eligible to receive security clearance of “secret” or higher). Thus, evidence not made available to the accused (via counsel) cannot be used against him at trial. Procedures For Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism, 68 F.R. 39373, 39378 (“no Protected Information shall not be admitted into evidence for consideration by the Commission if not presented to Detailed Defense Counsel”).

In any event, access to protected information by military counsel is clearly sufficient unless one assumes that military counsel is less proficient than civilian counsel. Moreover, military defense counsel may divulge protected information to civilian defense counsel if permitted by the Presiding Officer. Although an unnecessarily cumbersome requirement, it must be assumed that both military and civilian defense counsel would petition the Presiding Officer for such permission in each instance. The rules applicable to both military and civilian defense counsel require that they work cooperatively with one another to ensure that each is capable of conducting the defense independently if necessary. Qualification of Civilian Defense Counsel, 68 F.R. 39394 (July 1, 2003).

The concern regarding civilian counsel’s access to evidence is therefore most certainly overblown, considering that detailed military defense counsel must be a full fledged member of a civilian bar (as a condition of her admission to the JAG corp), is bound by both civilian rules of ethics and military orders to “defend the accused zealously . . . without regard to personnal opinion as to the guilt of the accused,” and that civilian counsel will, in the overwhelming majority of cases, be qualified and allowed to receive protected information. Be that as it may, the controversy is unnecessary since the military could simply require that civilian counsel be subject to the same sorts of penalties applicable to military attorneys, and civilian attorneys in federal civilian courts, who violate an order to refrain from divulging sensitive information. Thereafter, prosecution evidence denied to civilian counsel could be deemed inadmissable. Simply subjecting civilian defense counsel to the same penalties applicable to military defense counsel would alleviate any need to deny civilian defense counsel access to all the evidence and diffuse what is really a minor issue.

The final significant misconception with regard to the fairness of the procedures applicable to military commissions concerns the government’s right to monitor conversations between defense counsel and the accused, and the venerable attorney-client privilege. The Times editorial states that the trial procedures are tainted as a result of that power, leaving the impression that evidence derived from eavesdropping on attorney client communications will be used at trial. The rules clearly provide otherwise, stating that “any evidence or information derived from such communication will not be used in proceedings against the Accused who made or received the relevant communication.” Qualification of Civilian Defense Counsel, 68 F.R. 39394 (July 1, 2003). This is a clearly stated exclusionary rule. The use of the word “proceedings” rather than “proceeding” means that not only will the information be inadmissable in a pending case, but also inadmissable in any other proceeding against any the detainee. Moreover, the Times and the ABA complain, the rules require civilian counsel to inform the government of information “relating to future criminal acts.”

The Times editorial doesn’t tell the whole story. The reality is not so broad and is indeed reasonable to most people. Both military and civilian defense counsel are required to divulge information “related to the representation of the client that [he] reasonably believes necessary to prevent the commission of a future criminal act that [he] believes is likely to result in death or substantial bodily harm.” Id. That the rule becomes mandatory only upon counsel’s “reasonable belief” that disclosure is necessary to prevent a crime she “reasonbly believes” will result in death or substantial bodily harm effectively renders the rule permissive, though it is written in mandatory language. And even if interpreted broadly to require disclosure more often than not, the rule is entirely consistent with most state ethics rules which permit counsel to disclose client confidences to prevent the commission of any crime, not just those likely to result in death or substantial bodily harm. The rule is also less drastic than a recently adopted SEC rule permitting counsel to disclose client confidences to prevent a civil act that is likely to create relatively harmless financial damage. If ratting out a client who intends to cheat stakeholders out of cash (something the Times wholeheartedly supports) is acceptable, it is even more acceptable to “require” attorneys to divulge information necessary to prevent “death or substantial bodily harm.”

The delay in bringing justice to the detainees is absolutely indefensible and ought to be corrected. But once those detainees are afforded a hearing, that hearing will be very similiar, if not identical, to one provided most U.S. citizens, particularly those citizens serving in the armed forces. The presumption of innocence (such as it is in any U.S. criminal system), the rights of fair notice, confrontation and cross examination, compulsory process, and adequate representation are all substantially preserved. The fact that the hearings are provided by the military is no basis for knee-jerk, stereotypical characterizations of procedures that have obviously been painstakingly (as demonstrated by the much too long delay) drafted. The music ain’t perfect, but it ain't all bad either.

September 11, 2003