ABA president expresses 'grave concern' over military commission process

[JURIST] American Bar Association (ABA) [profession website] President William H. Neukom said in an op-ed [text] published on the ABA website Monday that American lawyers are "deeply troubled by six death penalty cases" being tried by the military commissions process at Guantanamo Bay [JURIST news archive]:

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.
In February, Neukom sent a letter [PDF text] to US President George W. Bush, offering the ABA's assistance to ensure that the military commissions provide sufficient due process for enemy combatants charged with a capital crime. The ABA Journal has more.

Last month, military prosecutors said they would seek the death penalty [JURIST report] against the six defendants [DOD materials] charged in the Sept. 11 attacks. Earlier this month, US Attorney General Michael Mukasey said he hoped those accused in the Sept. 11 attacks would not receive the death penalty [JURIST report] because it would make them martyrs.

 

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