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The charge is read. The defendant enters a plea. Both sides make opening statements, present evidence, offer rebuttal. When military commissions finally convene to hear cases against detainees captured in the war against terrorism, the trials may largely resemble conventional criminal proceedings. But with the Pentagon preparing to hold its first commissions, questions remain as to how the tribunals will operate and what type of justice they will dispense. The most pressing question may be the most basic: Can military commissions — constructed and controlled by the Defense Department — provide fair trials? The answer from the Pentagon is a resounding yes. “We are comfortable we’ve got something that will provide what the president asked for — full and fair trials that are an alternative to the federal courts,” says Defense Department General Counsel William Haynes II. Not everyone is convinced. New York lawyer Michael Ratner, president of the Center for Constitutional Rights, calls the commissions “a one-way road to conviction.” No individuals have yet been charged to face trial before military commissions, but a series of instructions released by the Defense Department over the past 14 months provides a rough road map for the upcoming trials. The regulations set out an unfamiliar and untested system of justice that strives to bring military commissions, last used after World War II, in line with modern conceptions of due process. Defendants before military commissions will be represented by counsel. They will be deemed innocent until proven guilty, and they will have the right to testify — or not — on their own behalf. The standard for conviction is the customary “beyond a reasonable doubt.” Though the procedures incorporate many elements of military courts-martial and federal criminal procedure, there are significant differences as well. For instance, defense lawyers must comply with extraordinary restrictions on their activities and communications; evidence will be accepted by commissions that would not be considered by civilian or military courts; and commission findings will not be subject to the review of an independent judicial body. From start to finish, the Pentagon retains broad control over the process — naming commission members, approving charges, reviewing findings, and, finally, imposing sentences. New York University law professor Stephen Gillers calls military commissions “a twilight zone.” “This system exists on the other side of the funhouse mirror,” Gillers says. “It would not pass a constitutional test in a civilian court.” Pentagon lawyers argue that military commissions were never intended to offer protections identical to U.S. federal courts. “Military commissions are not like courts-martial, and they are not like federal court proceedings, so we haven’t necessarily been bound by what has been done in those fora,” says Defense Department Deputy General Counsel Paul “Whit” Cobb Jr. In drafting the regulations, Cobb says, Pentagon lawyers strove to create as fair a system as possible while protecting national security interests. The rules have already scored a public relations victory. President George W. Bush’s November 2001 order authorizing the use of military commissions sparked an enormous backlash. In contrast, the regulations have met modest approval and quieted much of the controversy. “Ultimately, the proof will be in the pudding as far as how well military commissions are accepted,” Cobb says. “I am very hopeful that commissions will come to be seen as a different, but very legitimate, form of justice for terrorists.” The next move belongs to President Bush, who must individually designate prisoners to stand trial. Pentagon lawyers would not comment last week on how many individuals they expect will make the list. In the meantime, roughly a dozen attorneys staff the nascent Office of Military Commissions. The skeleton legal crew includes Acting Chief Prosecutor Army Col. Frederic Borch III, Acting Chief Defense Counsel Air Force Col. Will Gunn, and Acting Commission Spokesman Air Force Maj. John Smith. The Pentagon announced the appointments of Borch and Gunn last week. (Their roles were reported by Legal Timesin ” DOD Readies Teams for Terror Trials,” April 14, 2003.) ‘COMMITTING MALPRACTICE’ Military commissions will be made up of three to seven active duty military officers, including at least one military lawyer to serve as presiding officer. Multiple panels are expected to be convened — each acting as a jury for one or possibly a handful of cases. Defendants are assigned military defense counsel and can retain civilian defense counsel at their own expense. Civilian defense attorneys must be U.S. citizens and able to obtain “secret” security clearances. In addition, civilian lawyers must sign affidavits agreeing not to enter joint defense agreements, not to speak to the press, and not to travel from the site of proceedings without permission. Furthermore, attorneys must accept that their time with clients may be limited and that all communications with clients may be monitored by intelligence agents. Even so, nonmilitary lawyers — even those with requisite security clearances — are not guaranteed access to all commission proceedings. As of May 21, just two civilian attorneys had expressed interest in serving as defense counsel. “An attorney would be committing malpractice by signing their affidavit,” says Rochester, N.Y., attorney Donald Rehkopf Jr., co-chair of the military law committee of the National Association of Criminal Defense Lawyers. “No self-respecting lawyer would sign something agreeing in advance to represent a client but waive certain tactics.” Pentagon officials say limiting the involvement of civilian lawyers may be necessary to protect sensitive information. “There will never, however, be a session that won’t be attended by the accused’s military defense counsel,” says one lawyer in the Office of Military Commissions. “So the accused will always have a lawyer in every session.” Judge advocates assigned to the defense team report to the chief defense counsel, who in turn reports to a lawyer in the Defense Department general counsel’s office. In contrast, each branch of the armed services has an independent defense organization to insulate defense lawyers from command pressure. Acting Chief Defense Counsel Gunn concedes that the command chain is “a lot shorter” for military commissions. “That is a matter that we spent a great deal of time talking about,” he says. “My commitment is to fight to make sure that the defense counsel that are part of this system are free from improper influence or interference in doing their jobs correctly.” More than 25 crimes have been laid out for trial before military commissions. Among them: attacking civilians, terrorism, and taking hostages. Each offense carries the possibility of the death penalty. According to Pentagon regulations, defendants must receive notice of the charges they face and get access to defense counsel “sufficiently in advance of trial to prepare a defense.” At least one week before trial, prosecutors and defense attorneys must turn over evidence they intend to raise at trial and the names of witnesses expected to testify. Prosecutors must also provide the defense with all exculpatory evidence. The sole standard for admission of evidence before military commissions is that it “have probative value to a reasonable person.” ‘A DOOR THAT SWINGS BOTH WAYS’ The determination can be made by the presiding officer or by a majority vote of commission members. Presumably, prosecution and defense counsel will not be able to argue for the exclusion of evidence on grounds commonly recognized by federal courts or courts-martial, such as that the evidence constitutes hearsay or cannot be authenticated. “In federal court, you are not allowed to introduce evidence that may be false and leave it to the defendant to respond to the evidence. That’s not how it works,” says George Washington University law professor Jonathan Turley, a vocal critic of military commissions. Supporters of military commissions say flexible guidelines are necessary to address difficulties in obtaining evidence of crimes that may have been committed in foreign countries or in the chaos of armed conflict. Smith, the commission spokesman, says that the rule puts defense counsel on equal footing with prosecutors. “This is going to allow the defense to put in affidavits or notes that they wouldn’t be able to put in otherwise. It’s a door that swings both ways,” he says. Conviction on any charge requires a two-thirds vote of panel members upon a finding of guilty beyond a reasonable doubt. There are no sentencing guidelines, and commissions are granted wide latitude in imposing sentences. Most sentences require a two-thirds vote, while death sentences require a unanimous vote of a seven-member panel. NO HIGHER AUTHORITY Perhaps the most dramatic divergence from federal and military practice — as well as the largest source of external skepticism — is the review process for military commissions. In the ordinary military justice system, a case proceeds through three levels of appellate review — a Court of Criminal Appeals in each service, the U.S. Court of Appeals for the Armed Forces, and, for some cases, the U.S. Supreme Court. Under Pentagon guidelines, the rulings of military commissions will be reviewed only by a three-member panel before final action is taken by the president or secretary of defense. The panel may include civilians and must include at least one individual with experience as a judge. Panel members are selected by the secretary of defense and serve at his discretion. “What’s missing is the protection of an independent forum,” says D.C. military law expert Eugene Fidell. “These members will not be independent. They will enjoy no tenure. That’s disquieting.” Duke University law professor Robinson Everett, former chief judge of the Court of Appeals for the Armed Forces, believes the military appeals court should be granted the power to review cases. “I think having that type of discretionary review would add additional confidence in the objectivity and fairness of the process,” Everett says. Within 30 days of receiving a trial record, the review panel must either return the case for further proceedings or forward it to the defense secretary with a recommendation. Ultimately, the case proceeds either to the president or the defense secretary for a final decision. Although the president’s 2001 order explicitly denies defendants the ability to pursue relief in the U.S. federal courts, constitutional lawyers expect defense lawyers will petition for review and that the Supreme Court may weigh in as it did in the 1942 trial of eight German spies in the case Ex parte Quirin. For its part, the administration seems confident that its use of military commissions can withstand a challenge. As for the question of fairness, Deputy GC Cobb says there was an initial ” knee-jerk reaction” to military commissions that he hopes can be overcome. “They haven’t been used in over 50 years in the United States, and the thinking is that somehow they are a lesser form of justice,” he says. “I would say the military commission process we’ve set up today . . . provides a very solid measure of due process.”

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