U.S. Terror Tribunals: Fair Trial or Kangaroo Court

Donald Rehkopf, co-chair of the military committee of the National Association of Criminal Defense Lawyers, called the planned military commissions "an embarrassment to democracy."

By Will Dunham

05/26/03 WASHINGTON (Reuters) - As the Pentagon finalizes plans for military trials of the terror suspects held at Guantanamo Bay, some legal experts are voicing doubts that justice will be done.

Donald Rehkopf, co-chair of the military committee of the National Association of Criminal Defense Lawyers, called the planned military commissions "an embarrassment to democracy."

"This is a show. It's a kangaroo court of the worst sort," he said, describing the rules as crafted to guarantee convictions, compel guilty pleas and make it as easy as possible to get the death penalty.

"I was actually shocked at how one-sided these rules were," said Michael Ratner, president of the New York-based Center for Constitutional Rights. "Even a military tribunal I don't think has to be this biased and unfair toward the defendant."

The Defense Department this month issued instructions for conducting the trials and last week named Army Col. Frederic Borch as the head prosecutor and Air Force Col. Will Gunn as the lead defense counsel.

Officials also began soliciting applications from civilian attorneys interested in defending suspects alongside a military defense lawyer assigned by the Pentagon.

Critics are fuming over restrictions placed on defense lawyers, the admissibility of hearsay and other evidence barred in U.S. civilian courts, and an appeals process that allows Defense Secretary Donald Rumsfeld and President Bush to decide whether a defendant was rightly convicted.

"We have been very careful in this process to do everything to guarantee a full and fair trial," Borch countered. "I don't think there's anything particular about the military commissions that's any different from any other prosecution."

Gunn said, "I am firmly convinced that we are going to be able to operate in such a manner that we're going to be able to provide a zealous defense for all detainees brought before trial."


The next key step is for Bush to designate which prisoners at the U.S. naval base in Cuba come under the jurisdiction of the commissions. The Pentagon then would bring charges.

In November 2001, Bush issued an order authorizing the use of military commissions to try foreigners who were members of the al Qaeda network or engaged in "acts of international terrorism." The order came about a month after Bush launched the war in Afghanistan aimed at crushing al Qaeda, blamed for the Sept. 11, 2001, attacks on America.

The United States is holding roughly 675 prisoners from dozens of countries without charge or access to lawyers in Guantanamo Bay. They are classified as "unlawful combatants," thus denying them rights accorded to prisoners of war under international treaties.

Officials involved in the process last week traveled to Guantanamo, where the trials are set to be held.

Under the rules, defendants are assigned a military lawyer. A defendant can hire a civilian defense lawyer as long as the government does not have to pay. This civilian lawyer must be a U.S. citizen, must be deemed eligible to hear classified information, and must accept conditions set by the Pentagon.

Defense lawyers, for example, must agree to allow the Pentagon to monitor conversations with defendants, essentially waiving the customary attorney-client privilege.

The Pentagon can bar civilian defense lawyers from certain closed proceedings. It prohibits the common practice of developing joint defense tactics with lawyers for other defendants.

There is no provision for a defense lawyer to contest whether a military commission has the jurisdiction to bring his client to trial.

"The concept of a defense counsel is absolutely meaningless," Rehkopf said. "No defense attorney could ever agree to those conditions without losing your law license."

Ratner said the trial instructions do not set out guidelines on sentences, including the death penalty,

"It seems completely arbitrary," he said. "It seems to be up to the military tribunal to give whatever sentence they want."


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