JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says that the processes and procedures of the United States military commission system being used to try alleged terrorists at Guantanamo Bay (GTMO) are a betrayal of the high standards for international criminal justice pioneered by American officials at the Nuremberg trials after the end of World War II…

On the day of the arraignment of alleged 9/11 plotters at GTMO, the use by the press of the term "court" about the GTMO procedures moves me to object. We should be loathe to use the term "court" – or even "military tribunal" – for these ersatz processes. The GTMO procedures besmirch our proud legacy from Nuremberg.

Many have written on the problems with these processes put in place by the President and Congress in the Military Commissions Act and I will not repeat that analysis here.

I would just remind all Americans of what Justice Robert H. Jackson said over 60 years ago, addressing the American Society of International Law in 1945 on courts set up to try alleged war criminals:

The ultimate principle is that you must put no man on trial under the forms of judicial proceedings if you are not willing to see him freed if not proven guilty. If you are determined to execute a man in any case, there is no occasion for a trial; the world yields no respect to courts that are merely organized to convict. I am not arguing against bringing those accused of war-crimes to trial. I am pointing out hazards that attend such use of the judicial process – risk on the one hand that the decision that most of the world thinks should be made may not be justified as a judicial finding, even if perfectly justified as a political policy; and the alternative risk of damage to the future credit of judicial proceedings by manipulations of trial personnel or procedure temporarily to invest with judicial character what is in fact a political decision.

As Jackson said in a concurrence in Shepherd v. Florida in 1951, let us not stress the trivial and ignore the important.

The fundamental flaw this time is that the GTMO processes were created to make palatable in some way the fact of the horrendous treatment these detainees were subjected to over the past 5 or 6 years and to permit the state to murder or indefinite incarcerate these "enemies of the state."

That horrendous treatment was the result of the panic and improvisation of a criminal kind by high level civilians and military generals that is detailed in far too many places. And the lust for blood surrounding these ersatz GTMO processes is as palpable as it was in a small southern town in 1951.

Because of the numerous failings of the structure, the GTMO processes are not courts or military tribunals in a judicial tradition. The yeomen work by lawyers (many of whom have now resigned) who understand the Jacksonian tradition to make these proceedings judicial simply can not mask the flaw.

These are not judicial forms at GTMO, they are theater. Even if the Supreme Court in the heat of this moment were to make a decision tomorrow stating these GTMO processes were fine, the GTMO processes will be seen throughout history as one more in the line of show trials as opposed to processes that are consistent with judicial forms in the line of Nuremberg.

I carry no brief for any of the defendants. I carry a brief for the idea of Anglo-Saxon justice. What should be done? The entire mess should be forced through the process of a normal civilian court. It is time for the tried and true, not the panicked and improvised. I have little faith that this country will do that now.

There are two additional things that come to mind: each defendant should be provided the defense counsel of their choice. If Khalid Shaikh Mohammed (KSM) wants a lawyer from Pakistan, he should be provided that. At Nuremberg, when there were issues of national security present, the defendants were free to have any lawyer that they wanted including lawyers who had been Nazis. We should renew that tradition and not the tradition of the Iraqi Special Tribunal where Saddam Hussein was assigned lawyers who were Shia and the family lawyers were not permitted to play their full role.

Second, KSM has children who have been held on dubious legal basis by the Americans. I have heard that one of them has been sent to Phillips Andover Academy. I am not aware of a rule of law that permits someone to hold a defendant's minor children. At a minimum, a guardian ad litem should be appointed for them in Massachusetts and a Massachusetts Court or Federal Court should determine what is to be done with these children during the course of these proceedings. And, if their mother or family in Pakistan seek to have those children returned that should be subject of a decision in a court of law. No child shields for this process. It is beneath the United States and besmirches the legacy of Jackson and Nuremberg.

Benjamin Davis is a professor at the University of Toledo College of Law
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