Standing up for justice in the Military Commissions proccedings

There are times in this country when we find ourselves at a crossroads - where the path we choose has the potential to define us as a nation for generations to come.

No doubt we've been at a critical juncture since September 11. How we respond to the atrocities thrust upon us after that terrible day says everything about who we are as Americans - what values we defend, how the world sees us, and how history will remember us.

The manner in which we seek justice against those accused of harming us will determine whether the United States will be seen at home and abroad as a nation of laws. We must decide whether we live the values of justice that make us proud to be Americans, or whether we will forsake those values and continue down a path of arbitrary rules and procedures more befitting those who are our enemies. Because we are a great nation, true to our founders' vision, we must uphold our core values even in the toughest of times. The right to a speedy trial in a court of law before an objective arbiter; the right to due process; the right to rebut the evidence against you; the right not to be tortured or waterboarded, or convicted on the basis of hearsay evidence are what truly define America and our commitment to the rule of law and our founders' aspirations.

The military commissions set up by the Bush administration for the men imprisoned at Guantánamo Bay - including those it suspects were involved in the September 11 attacks - are not true American justice. These trials should represent who we are, what America stands for, and our commitment to due process. They are not about how civilized the accused are, but how civilized we are. America does not stand for trials that rely on torture to gain confessions, or on secret evidence that a defendant cannot rebut, or on hearsay evidence.

For these reasons, the American Civil Liberties Union and the National Association of Criminal Defense Lawyers have taken on the task of assembling defense teams to be available to assist in the representation of those Guantánamo detainees who have been charged under the Military Commissions Act, subject to the detainees' consent. More than 30 lawyers have agreed to work on this important endeavor, including such experts as:

* Joshua L. Dratel
* Thomas Anthony Durkin
* Nina Ginsberg
* Nancy Hollander
* Denise LeBoeuf
* Amanda Lee
* Edward B. MacMahon, Jr.
* Scott McKay
* David Nevin
* Jeff Robinson
* Gary D. Sowards

In addition to these leading criminal defense and death penalty lawyers with unparalleled expertise in national security issues who have been tapped by the ACLU and NACDL, there are more than 20 lawyers at the ACLU who stand ready to assist with the effort. The ACLU/NACDL cooperating lawyers have defended cases such as those involving David Hicks, Lynne Stewart, Zacarias Moussaoui, the Texas Holy Land Foundation, Sami Omar Al-Hussayen, and Abdelhaleem Ashqar, among others. The ACLU and NACDL have assembled the "dream team" of criminal defense lawyers not only because of the seriousness of the charges - the government has stated that it intends to seek the death penalty - but because America deserves the best and brightest of advocates defending our values.

The ACLU and NACDL do not agree with how the government is conducting these commissions. Nonetheless, we believe in vigorously pressing our cases, defending fundamental American values, and challenging the government's attempts to stack the deck in its favor.

We take this step because we simply cannot stand by and allow the Bush administration's military commissions to make a mockery of our Constitution and our values. We believe in the American justice system - despite its imperfections and distortions by pundits, politicians and ideologues - and we believe we can make the system stronger by engaging it and fighting for what is right, fighting for fair trials and for America's reputation.

The prison at Guantánamo Bay, and the military commission proceedings set to occur there, were set up to evade the American justice system and the rule of law. The proceedings, as proposed under the Military Commissions Act and run by the Department of Defense, are nothing like the trials guaranteed by our Constitution or the long-established military commissions promulgated by the Uniform Code of Military Justice - the finest system of military justice in the world.

The Bush administration decided to scrap both time-tested systems of justice. Instead, the Administration made its own rules. The President alone has the power to determine who will be tried by the Guantánamo military commissions. These commissions ignore the fundamental tenets of due process and were set up to convict detainees based on secret evidence that they cannot rebut, hearsay evidence, and confessions that could be based on torture.

At Guantánamo, the government has been making up the rules as it goes along. This should be shocking and unacceptable to all Americans.

In America, we do not believe in having fair trials for some defendants but not for others.

The defendants in these proceedings have been charged with horrendous crimes. Any person found guilty of a crime in a legitimate proceeding before a court of law deserves to be punished appropriately; however, it is a central tenet of our system of justice that guilt must only be decided after a fair trial, not beforehand. A defendant's guilt - or lack thereof - should be determined in a manner consistent with our Constitution and proper due process protections. A guilty verdict obtained any other way would rob this country, and the world, of any true sense of justice.

While the ACLU and NACDL are preparing to provide for a vigorous legal defense in keeping with the best of American values in a military commission process we believe is deeply flawed, we also believe there are other options. The perpetrators of the first World Trade Center bombing in 1993 were tried and convicted in our civilian court system, as were the perpetrators of the 1998 embassy bombings in Africa. The Uniform Code of Military Justice also sets forth procedures with adequate protections of due process.

These prosecutions are some of the most important criminal proceedings in our nation's history. There is no reason to make up new rules for these trials. Fairness and due process do not weaken our justice system - they are what make it strong - and Americans deserve better than to have these deeply flawed commissions carried out in our names.

To date, calls to close Guantánamo and to give legitimate, fair trials to those individuals imprisoned there by our government- most of whom have been detained for years without charge - have gone unheeded. As the government prepares to commence these proceedings, the ACLU and NACDL will prepare a robust legal defense while simultaneously working to expose how fundamentally flawed Guantánamo's military commissions are.

The ACLU and NACDL will offer our services to the so-called "high-value" detainees and we will endeavor to secure their consent to our legal representation of them. This has not yet occurred, as ACLU and NACDL lawyers have not yet had access to the Guantánamo detainees. We hope to ensure that those prosecuted in the military commission proceedings receive a fair trial and have qualified counsel. As it stands right now, the accused are provided with one military JAG lawyer, while the prosecution has well-equipped teams with the resources of the entire U.S. government behind them. We will attempt to ensure that the accused are provided with the best legal teams not only to prepare their defense, but - critically - to challenge the existence and procedures of the Guantánamo military commissions themselves.

There are those who might ask why the ACLU and NACDL would get involved in such difficult cases with controversial clients. We have chosen to become involved in these cases because Guantánamo has shown us that, as far as our government is concerned, the Constitution does not matter, human rights do not matter and due process does not matter. And when our constitutional values are most seriously threatened, we believe that we must step into the fray. That's what we're here for, what we've always done for generations before us, and what will be certainly expected from us for generations to come. Our founders did as much - like John Adams who defended the British soldiers charged with killing Americans in the Boston Massacre, and said that the case was "one of the best pieces of service I ever rendered my country." Our founders would expect nothing less from 21st century Americans. We are proud - and not cowed - to fulfill that dream of a democratic republic governed by the rule of law - and not the whims of leaders.

The NACDL has always believed that the rights of the criminally accused define the rights of all people. The ACLU has a proud history of standing up for civil liberties, even when it has the potential to be unpopular. During World War II, the San Francisco office of the ACLU represented Fred Korematsu, who was charged with the crime of violating curfew orders during Japanese internment. We also defended the rights of free speech and association during the decades when Communism provoked as much hatred and fear as al Qaeda does today. In 1977, the ACLU defended the right of Nazis to march in Skokie, Illinois, a substantially Jewish community with as many as 1200 survivors of the Holocaust. There was public outcry, but with time our principled stand was largely understood and vindicated. These cases were clearly controversial as they - like the situation we face today - involved a public that understandably felt injured, threatened and maybe even scared.

But it is when the stakes are the highest and when tempers run the hottest that we must work doubly hard to keep a check on our government and prevent it from trading in our values for visceral and political motives - no matter what the motivation. It is during the most challenging situations that our country's values are most intensely tested, and along with them, the ACLU's commitment to its core principles. We are determined, as we have always been, to meet this challenge. We trust you will respect the work we do, why we do it, and even join us in reclaiming what America stands for.