Defense Lawyers for 9/11 Detainees Challenge Bias and Political Influence at Guantánamo Proceedings This Week
ACLU and NACDL Appear at Hearings as Civilian Legal Advisors
GUANTANAMO BAY - Appearing before a Guantánamo military commission today, military attorneys and civilian lawyers sponsored by the American Civil Liberties Union's John Adams Project sought to interject a degree of fairness into the deeply flawed system. Among several requests, defense lawyers are asking that all charges be dismissed against the detainees accused of crimes related to the 9/11 attacks because of a history of political interference from Brig. Gen. Thomas Hartmann, a top Pentagon general.
Last Friday, the Department of Defense announced that Hartmann will be "reassigned" to a newly created post - director of court logistics - and replaced by his deputy as the military commissions' legal advisor. Pledging to prosecute detainees at a quick pace, Hartmann said that his goal in his new post is "to keep the process moving, really intensely," an objective that raises questions about trials that cut corners, deny basic fairness and are aimed at convictions rather than uncovering the truth.
"General Hartmann is essentially saying that he will use his authority to run roughshod over these proceedings and deny even the semblance of a fair trial," said Denny LeBoeuf, Director of the ACLU John Adams Project, a partnership with the National Association of Criminal Defense Lawyers (NACDL) to provide civilian lawyers to supplement the under-resourced military defense counsel. "The American people are being denied a fair and open process of adjudication."
In legal papers filed before Hartmann's reassignment, defense lawyers had asked that he be removed from the cases for exerting "unlawful command influence" or that the cases be dismissed. Hartmann's dual role of supervising the prosecution and offering legal advice to the commissions' convening authority, who must make impartial assessments on issues raised by both the prosecution and defense, represented a clear conflict of interest. Hartmann has already been dismissed from three other military commission cases after improperly politicizing them, including that of Salim Hamdan, Osama bin Laden's driver, whose Guantánamo trial concluded in August. The lawyers argued that the cases should still be dismissed because the fairness of the process has already been compromised.
The defense lawyers are also arguing that the convening authority must allow the defense the ability to hire expert consultants or witnesses without first notifying the prosecution about the substance of their requests. Currently, the defense teams must clear each request for expert consultants - including the details of and strategy for their proposed retention - with the prosecution. This practice is typically not required in military courts.
"It is too late to level this playing field. From day one, these flawed commissions, which allow for hearsay, secret evidence and evidence obtained through torture, have stacked the deck in favor of the Bush administration. Once you look at this system, you see that it has no integrity - rules are biased and there is a vast disparity of resources between the government and the defense," said LeBoeuf. "The prosecution has all of the resources of the federal government behind it and, by its own claim, has conducted the ‘largest criminal investigation in United States history.' But the defense is supposed to disclose a detailed description of their legal strategy to the prosecution in order to get an expert witness?"
Also at this week's proceedings, which are expected to continue into Tuesday, defense lawyers will follow up with questions of the judge in order to determine his objectivity.
In another example of the secrecy surrounding the Guantánamo proceedings, legal documents related to these and other hearings, normally a matter of public record in traditional courts, are unavailable for release due to military commission rules.
More information on the ACLU and NACDL's John Adams Project is available online at: www.aclu.org/johnadams
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