Tribunal Troubles

The five lawyers protesting the use of closed military tribunals to try detainees at Guantanamo Bay, Cuba, could be dismissed as overzealous jurists looking out for the best interests of their clients. Except for the fact that they are members of the military, the same institution they now say cannot render justice for their clients.

Five military defense lawyers filed a “friend of the court” brief recently with the U.S. Supreme Court arguing that their clients – some of the nearly 700 “enemy combatants” held in Cuba – are entitled to access the federal court system. The U.S. government contends the alleged al-Qaida and Taliban fighters rounded up around the globe are not entitled to access the U.S. court system and that their cases will be handled by the military without the possibility of appeal to a civilian court.

The military lawyers, who received permission from the government to file the brief, do not challenge the president’s right to hold those captured as part of the war on terror. But, they argue, the detainees should not be tried, convicted and sentenced – possibly to death – in military courts without the right to appeal in civilian courts. “The Constitution cannot countenance an open-ended presidential power, with no civilian review whatsoever, to try anyone the president deems subject to a military tribunal, whose rules and judges have been selected by the prosecuting authority itself,” they write in their court filing.

The lawyer for the first man expected to be tried before a military tribunal said such logic runs counter to the basic tenets of the U.S. justice system. “The military commissions will not provide a full and fair trail,” said Michael Mori, the Marine Corps major assigned to represent David Hicks, an Australian detainee.

Maj. Mori went on to say the process has been “created and controlled by those with a vested interest only in convictions.” He pointed out that the United States would not stand for similar treatment of its citizens by other countries.

This is strong language coming from a military lawyer ordered to defend someone who isn’t a U.S. citizen. It is also unusual that Maj. Mori felt so strongly that he held a news conference to speak about how his country was mishandling the Guantanamo detainees.

Prior to his press conference in Washington, D.C., Maj. Mori was barred by the Pentagon from discussing the case. Asked by the Australian Broadcasting Corp. what he could talk about, Maj. Mori responded: “Just basically who I am.” Even then, however, the Pentagon would not reveal his age.

In exchange for the opportunity to go to Cuba to meet his client, Mr. Hicks’ civilian lawyer, Stephen Kenny, also had to abide by the Pentagon gag order. He told the Australian television station that he needed the permission of Paul Wolfowitz, deputy secretary of defense, in order to talk to the press. If he did not abide by these conditions, he would not have been allowed to meet with his client in December. Mr. Kenny and Maj. Mori were the first lawyers allowed to meet their client face-to-face in Cuba.

These are unprecedented steps for the U.S. government to take. They are also increasingly questionable steps. A panel of the 9th Circuit Court of Appeals recently ruled that the detainees, who have yet to be charged with specific crimes, cannot be held indefinitely at the U.S. Navy prison in Guantanamo Bay without due process.

Maj. Mori, who took an oath to defend the Constitution, was brave to speak up. It would be helpful if his government would listen.