Oregon State Bar Bulletin — APRIL 2008
Parting Thoughts
Fair Trials at Guantanamo
Why They Matter to All of Us
By William H. Neukom

No one would accept it if a local prosecutor used sleep deprivation and attack dogs to coerce an inmate’s confession. No judge, county or federal, would admit hearsay testimony in a trial. No jailer would be allowed to eavesdrop on confidential communications between a defendant and his lawyer.

The reason is simple and important. No matter how horrendous a crime, the law must be obeyed at every step, from arrest to final verdict. When shortcuts are taken, confidence in the law suffers. Our nation suffers.

For this reason, American lawyers remain deeply troubled by six death penalty cases moving forward in Guantanamo.

The defendants are charged with horrific crimes — assisting in the September 11 terror attacks. Those who are guilty must answer for the murder of thousands of Americans.

But it must also be clear, when the final gavel is struck, that their trials have been fair, impartial and just.

As a lawyer with 40 years’ experience in criminal and civil cases, and as the head of a bar association that includes tens of thousands of prosecutors and defense lawyers, I have grave concerns about the process by which Guantanamo detainees will be tried.

Detainees cannot seek habeas corpus review — an 800-year-old process by which judges determine whether a defendant’s imprisonment is appropriate. The Guantanamo defense office is understaffed and restricted in its ability to meet confidentially with defendants.

Moreover, Pentagon and Justice Department officials have ruled that hearsay testimony and coerced confessions are admissible — even when obtained through techniques, such as "waterboarding," that are now illegal for military interrogators to apply.

No one questions the conscientious men and women who will try the Guantanamo detainees. But if basic due process is abridged this way, especially in death penalty cases, such trials are likely to leave a cloud of doubt and distrust, in the United States and abroad.

Last month, the American Bar Association wrote President Bush, offering to help devise a fair trial process. As the letter noted, "No matter how outrageous the conduct, we must insure that these detainees receive fair trials that meet the highest standards of due process and justice for which this nation long has been respected."

America has rules that protect basic rights in military settings: the Uniform Code of Military Justice. Since 2002, the ABA has urged that detainee trials be governed by the Uniform Code, and according to international treaty obligations.

Because capital cases are extraordinarily complex and carry the ultimate punishment, the ABA has guidelines for the proper funding, training, staffing and performance of defense counsel in death penalty cases. These guidelines should be used at Guantanamo, and the Defense Department should pair its excellent military lawyers with civilian counsel who have expertise and experience in capital cases.

Meeting the highest standards of justice will make a powerful statement to the world: No matter how deep our anger, America’s commitment to the rule of law stands strong. Suspects convicted through fair trials will be seen as criminals, not martyrs.

In this way, and this way only, can the trials we conduct, and the unimpeachable judgments that we reach, begin to put the tragedy of September 11 behind us.

The author is president of the American Bar Association.

© 2008 William H. Neukom

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