By Jacob G. Hornberger
The federal government has announced that it intends to go forward with military tribunals for trials of suspected terrorists. The trials will not be held in the United States, however, but instead in Cuba, where military tribunals are also a central part of Fidel Castro’s “war on terrorism.”
The U.S. chief prosecutor, Army Col. Federic L. Borch III, has announced that he expects a “no-holds-barred legal combat between the two sides, and that fair trials will be the result.”
Unfortunately, Borch fails to recognize some important points regarding a fair trial or perhaps, like beauty, fairness is in the eye of the beholder. First, the chief defense attorney, Air Force Col. Will A. Gunn, is not a private, independent criminal-defense attorney but instead an employee of the U.S. government, the entity that is prosecuting the defendants, and specifically an employee of the U.S. military, the entity that captured and incarcerated the accused terrorists.
The government is hoping that civilian attorneys will volunteer to travel to Cuba and serve as defense counsel for the accused terrorists and so lend an aura of legitimacy to the proceedings. But the search isn’t going too well, given that no one has yet submitted an application. Don Rehnkopf, co-chairman of the National Association of Criminal Defense Lawyers’ military law committee gave one reason the U.S. military’s rules are so stacked against the defense that few civilian lawyers want to apply.
Second, according to Eugene Fidell, president of the private National Institute of Military Justice, Gunn’s clients will not have the time-honored protection of the attorney-client privilege of confidentiality because Gunn reports to the same place to which the prosecutors report the Pentagon’s general counsel’s office.
His words were echoed by Rehnkopf, who explained why truly independent (i.e., private) criminal-defense attorneys were not submitting their applications to participate in the government’s military-tribunal proceedings: “It would be unethical for any attorney to agree to the conditions they’ve set. You have to agree to waive the attorney-client privilege so that the government can monitor your conversations.” Fidell pointedly observed, “It’s unclear how the chief defense counsel becomes more than an administrator.”
Third, and perhaps most important, there won’t be a jury trial, at least not like one to which Americans are accustomed. The jury will be composed, not of ordinary people from all walks of life whose careers do not turn on their verdict, but of military personnel whose careers ultimately depend on the Pentagon.
Ask yourself an important question: Why is the U.S. government holding the trials in Cuba rather than in the United States?
There’s one and only one reason: to avoid the constraints of the Constitution of the United States, the document that U.S. officials take an oath to support and defend. Unfortunately, when it comes to waging the war on terrorism, all too many U.S. officials hold our Constitution and specifically its centuries-old Due Process of Law guarantees in contempt.
Mr. Hornberger is president of The Future of Freedom Foundation in Fairfax, Va., and holds a law degree from the University of Texas.