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REPRESENTING TERROR SUSPECTS BEFORE U.S. MILITARY TRIBUNALS: IN DEFENSE OF THE MILITARY MOCKINGBIRD
Professor Darryll Jones
University of Pittsburgh School of Law
JURIST Guest Columnist

[Editor's note: this column is the first of an exclusive series that Professor Jones will be writing for JURIST this year about his service as defense counsel for terrorist suspects appearing before US military tribunals]


Life, like good literature, consists of a series of episodes. In my present episode, I play the part of a tax law professor. This summer, I am researching and writing about the tax consequences for a person who receives a partnership "profit interest" in return for services. In a prior episode I specialized in higher education law. I was counsel to two separate universities.

But before any of this, I played the role of Army Judge Advocate. I was Trial Defense Counsel at Fort Campbell, Kentucky, home of the 101st Airborne Division (Air Assault) the Screaming Eagles. I defended soldiers before Special and General Courts-Martial, as well as administrative discharge boards (i.e., due process hearings for persons with enough time in the Army to warrant formal process before being fired.)

Which brings me to what I hope will be a successful pilot for a future life episode. On July 10, 2003, I received a letter from Colonel Will A. Gunn (USAF) informing me that my application for appointment to the pool of 轍ualified Civilian Defense Counsel had been approved. Col. Gunn is the Acting Chief Defense Counsel assigned to provide representation for the 660 suspected Al-Qaeda or Taliban terrorists presently being held at Guantanamo Bay Naval Base, Cuba. I applied for such approval after reading a New York Times article back in May about the Defense Department痴 largely unsuccessful efforts to recruit civilian attorneys to participate in the Military Tribunals established to provide 菟rocess to the poor slobs detained in Guantanamo. In short, the approval means I will likely be called upon to serve as defense counsel for an Al-Qaeda or Taliban person suspected of participating in terrorist acts against the United States.

All persons accused in the Military Criminal Justice system, as I recall that system, are informally and sympathetically referred to as poor slobs, but not because conviction was a fait accompli once charges were preferred. As a practical matter, though, there was and is a presumption of truth in the charges arising from preferral itself. As a trial defense JAG, I never found this presumption of truth to be inconsistent with the venerable 菟resumption of innocence. In any civilian system there is just such a presumption of truth to every criminal indictment and that presumption competes with the presumption of innocence in the minds of the jury. That presumption of truth is usually referred to as 菟robable cause, and I suspect that most juries military or civilian think that a defendant or accused 努ould not be here unless he had done something. Acquittals are rarely achieved without the defense actually putting forth evidence that proves the supposed presumption of innocence. In short, the presumption of innocence is practically a myth both within and without the military if a defendant or accused痴 defense is merely the presumption of innocence, he perhaps ought to cut a deal rather than proceed to trial. Cynical? Maybe, but nonetheless true in courtrooms across the country especially if the defendant or accused happens to look or speak a little differently from most jury members, if you know what I mean.

Nevertheless, the popular belief that there is an even higher degree of inevitability to military criminal process is one apparent reason why so few civilian attorneys have stepped forward in response to DOD痴 call for civilian participation. Only ten people at least two of whom are academics as far as I know have volunteered. Some spokespersons for bar associations have even used the 摘 word, suggesting that attorneys will be committing an ethical violation by participating in Military Tribunals. If convictions of Al-Qaeda or Taliban suspects are indeed a fait accompli, can efforts to change the supposed inevitability really be viewed as unethical? All of this strikes me as prior restraint, of sorts, justifying the civilian bar痴 righteously indignant, informal boycott decided upon without first even trying to provide an effective defense to the poor slobs who might benefit more from active participation. While I知 being cynical, I should also offer the fact that very few of the poor slobs are able to pay rates normally charged by American attorneys, which may also make the informal boycott all the more easily decided upon. The DOD has made it perfectly clear that the government will not compensate civilian attorneys for whatever time, effort or expense is incurred by them.

My own reasons for wanting to be involved are not entirely selfless, of course. I am excited by the opportunity to be involved in history sort of like the attorneys who defended accused Nazi war criminals must have been excited even if 兎verybody knew they were guilty. The recognition of my participation will undoubtedly be rewarding this episode痴 ratings will be high. But those rewards, whatever form they may take, are contingent solely upon my strenuous efforts against the government痴 case in each instance and at every turn. Complicity in a witch hunt brings no reward and I do not intend to be complicit.

Still, I also harbor a certain defensiveness towards unknowing critics of the Military Justice system. I know from personal experience that most criticisms are just plain wrong - I want to defend the system just as the attorneys who represented Timothy McVeigh or the DC snipers were and are defending the system by zealously defending their clients. Military juries are, admittedly, made up of people who believe in authority and therefore are less likely to question authority. But they are also all college educated (the military jury is comprised of officers and senior NCOs, all of whom must be college educated to have achieved their rank in today痴 military), trained in the tradition of American higher education and prone to question 吐acts, recognize bias, and understand the difference between theory and truth even as they are loathe to question authority. Military juries return acquittals less often than some jurisdictions and more often than others. Still, military juries work at getting to the truth their active, thinking participation is demonstrated perhaps by their ability to put questions to witnesses themselves rather than sit passively during the course of the trial only when pushed and prodded to do so by zealous trial and defense counsel. It may be, of course, that defense zealousness is insufficient if the defense is hamstrung by limited discovery or other rules of process. But whether such rules are indeed so limited is a matter that ought to be litigated, not simply assumed in the first instance. One can hardly prove the unfairness of any system until she has worked as hard as possible in trying to ensure that innocent persons ensnarled in that system are acquitted. As for the prior restraint I mentioned earlier, the obligation to be zealous may eventually require withdrawal, but rarely does it justify prejudgment against the very participation that might vindicate individual human rights. Indeed, what would Atticus Finch have said in response to an indignant colleague's suggestion that he simply boycott the proverbial lynching of the mockingbird? Worse yet, what chance would his client, Tom Robinson, have had if Finch had heeded that indignation?


Darryll Jones is a professor of law at the University of Pittsburgh School of Law

August 4, 2003

GUEST COLUMNIST

JURIST Guest Columnist Darryll Jones is a Professor of Law at the University of Pittsburgh School of Law. He began his career as a criminal trial attorney for the Army Judge Advocate General. Later he served as Associate Counsel at the University of Florida and then as General Counsel for Columbia College Chicago. His writings on taxation and tax exempt organizations have appeared in the Virginia Tax Review, Florida Tax Review, Tax Notes, The Exempt Organization Tax Review, and Notre Dame University's Journal of College and University Law.

In addition, Professor Jones has published articles on constitutional issues involving desegregation in higher education and the insanity defense. Professor Jones is a member of the Florida and Illinois Bars and previously served as the Chair of the Tax Section, National Association of College and University Attorneys. He holds B.S., J.D., and LL.M. degrees from the University of Florida.