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Why Are We Turning Our Backs on the Constitution?

It has been nearly four years since President Barack Obama promised to close the detention camps at Guantanamo Bay. The camps remain along with a score of lingering questions.

Editor’s note: Ongoing coverage of the military commission hearing at Guantanamo is a collaboration between Truthout and Seton Hall University School of Law, Center for Policy and Research.

It has been nearly four years since President Barack Obama promised to close the Detention Camps at Guantanamo Bay. The camps remain along with a score of lingering questions.

On August 20, like so many observers before me, I boarded a flight at Andrews Air Force Base in the hopes of witnessing the Military Commissions in action. Ostensibly, I was going to watch a series of hearings over a nine-day period involving motions in the 9-11 conspirators case. And while Mother Nature had other plans (the hearings were cancelled thanks to the imminent arrival of tropical storm Isaac), the motions filed give some indication of the hard road ahead.

The motions fall into several categories, but are unified by a centralized theme: can justice be achieved in a system besieged with allegations that it is shrouded in every sense in secrecy and inequity? If transparency and the ability to engage in zealous advocacy is the currency of legitimacy in Article III civilian courts, how can these Commissions—with their presumptive classifications, requirements for the defense to seek the aid and approval of the prosecution in procuring witnesses, and wildly disparate resources between the two sides—possibly produce anything resembling a fair conclusion? Or are the proceedings an entirely different animal in which the proper comparison is to court martial proceedings and not to civilian courts at all? These questions inevitably haunt the hybrid system Congress created. In rejecting both the Article III court system and the court martial process, Congress created a no man’s land of judicial uncertainty and procedural limbo and left these Commissions to sort out the appropriate process for these cases. As Judge Pohl, and the litigants, struggle to define the proper procedure in this hybrid system, the motions filed in the last few months push questions of the process’s legitimacy to the forefront.

Setting aside the question of the court martial procedure for now, there are striking contrasts between the criminal process in civilian courts and the process that is unfolding in the Military Commissions in Guantanamo. Turning first to the question of secrecy, in civilian criminal courts across the country, whether governed by State or Federal Rules of Procedure, hearings are almost always public. The Sixth Amendment of the Constitution promises a public trial, and the Supreme Court has time and again held that courtrooms may only be closed in the rarest of circumstances. Trials, the Founders and later the Court reason, draw their legitimacy in part from our ability as citizens to access what happens. Matters are not litigated behind locked doors. Witnesses do not accuse in darkness. Defendants are not convicted under cover. Verdicts are not returned by faceless jurors or judges unseen and unknown. The process on which we rely to deliver a just outcome does so in the light of day, with each of us enjoying at least the ability to be present. On any given day, you or I can walk into a courtroom and hear testimony, motions hearings, or any of a myriad of other proceedings. In our stead, the press may attend such hearings and report back. We, the public and our surrogates, are quite literally the witnesses to the process. And with our presence, we are a check both that the rules are followed, and that the outcome seems fair, legitimate, and grounded in the reality that we saw and heard unfold in the open courtroom. For all its imperfections, the open courtroom holds the promise of a knowable, accountable system. It holds the promise of fairness.

In contrast, Military Commissions operate in a middle world in which claims of national security are invoked to allow only the faintest glimmers of the proceeding to filter to the surface. Observers are present. The public can watch the proceedings unfold through closed circuit broadcasts at Fort Meade. It is possible to literally witness the process, though large swaths of evidence remain obscured thanks to a forty-second time delay that allows portions of the proceedings to remain secret even in the face of all these witnesses. The prosecution argues that this shrouding of evidence is necessary. It is inherent to the nature of the cases themselves. General Martins, at an August 22 press conference on Guantanamo, was quick to remind that even in a civilian system, there are times when the courts are closed – when, in the interests of protecting a witness, or shielding sensitive information, the normally ever-present public, is excluded. For these 9-11 conspirators, he tells us, this need to block public access is more acute. The nature of the charges, and the evidence that would support or defend them, is sensitive. Even ten years after the 9-11 attack much of the evidence is classified, and its very utterance is claimed to impose on national security interests.

Surely, there is some validity to this claim. It has not been so long since that clear morning in September that I cannot remember the fear I felt and the realization that the world had changed. That fear is resilient. It lingers and pushes back against those who would challenge the claim that some information cannot be made public, even in a forum like a Commission hearing room in which the matter is litigated in all our names. So, while parts of the hearings are available for public consumption, vast stretches of evidence are classified, precluding public consideration of either their content or their sufficiency to support a verdict or a death sentence. But classified information is—by its very nature—off-limits, making it impossible for me or any other member of the public to test the validity of any given classification. To further complicate matters, statements made by the defendant falls into a “presumptively classified” status. If such statements compose his mitigation evidence, or describe the conditions of his detention or interrogation, or explain his motivation, we, the public, cannot hear. And his attorneys cannot utter them on his behalf.

In a series of motions filed by the defense, counsel attempted to explain the significance of this system of presumptive classification. Information provided by the defendant, they argue, is critical to helping defense counsel investigate the case and zealously advocate on behalf of their clients. If such information cannot be uttered, how can the defense do its job and zealously represent the client? In response, the prosecution asserts that the defense has the opportunity to seek declassification of information material to their case. In all the back and forth between the parties (some of it itself unavailable to the public), fundamental questions linger: What exactly (or even approximately) is the process by which such declassification is accomplished? What is “material” to the defense? And who exactly makes this determination and under what standard? Such questions, which are commonly and openly debated in civilian courts, remain unanswered and muddled in the Commissions. While Article III courts recently struggled with these questions, they did so in the context of two hundred plus years of evolving precedent and accumulated judicial wisdom. For Judge Pohl, and the Military Commissions, there is only selective incorporation of competing procedural norms. The result is ungrounded process that, viewed from the outside, is unclear. It feeds the lingering questions: can this be fair or at least sufficiently familiar to achieve the legitimate outcome both sides claim they are seeking?

At their last court appearance, the men accused of the 9-11 conspiracy answered this last question with a resounding show of no faith. Their sense that these hearings could be fair was so little, they declined to even engage in the process, choosing instead to ignore the court and frequently their counsel. In this they joined a political tradition of declining to legitimate the process with their own participation, and using their refusal to call attention to the deficiencies they perceived.

All of this in turn raises a second question—the possibility of zealous advocacy in this system. In my former life as a public defender, whenever someone would ask me how I could represent murderers and rapists, most of whom were surely guilty, my answer was always the same. I do it because I believe in the system of justice as promised by the Constitution. In order for that system to work, I would explain, it requires two zealous advocates on either side, each pushing their perspective to ensure the fairest outcome possible. I do it because I believe that no person should be convicted without sufficient proof, and no person should be punished without a chance to be heard, to test the evidence, and to challenge the State’s conclusions. We owe that, I reasoned, not only to the defendant, but to ourselves as a nation that values not merely a conviction, but justice. So I fought for the guilty and the innocent as hard as I could, because in fighting for each of my clients, I fought for my own beliefs. And when my hands were tied by limited resources, or no access to witnesses, or any of a myriad of obstacles that inevitably face public defenders, it not only impinged on my ability to do my job, it threatened the just outcome our system promised. Sure, the outcome may ultimately have been the same – a guilty client may have been convicted regardless of whether I was able to interview a witness or to hire an expert to help me, or the jury, sort through a complicated matter —but somehow the verdict always seemed a little smaller to me, a little less significant because it had been achieved without a fair fight.

For the men and women charged with defending the 9-11 conspirators, their ability to zealously advocate is hamstrung on every side by the system itself. Defense attorneys must notify the prosecution and seek the prosecution’s assistance to call witnesses. In the civilian system, an attorney utilizes the power of a subpoena to compel a witness to court, and only after the decision is made to call the witness must notice be given to opposing counsel. The defense in the Commission system must not only inform the prosecution of its witnesses and their expected testimony, but it must rely on the prosecution’s willingness to help procure the witness’s presence. In some ways, again, this rests on the unique nature of the proceedings. Frequently, access to the witnesses may only be realized through the prosecution’s help because they are either government employees or members of the military; if they are civilian witnesses their identity is often unknown to the defense and they are not permitted access to the location of the hearings – a military base – without the government’s cooperation. As a matter of logistics, the system therefore may seem benign, but this belies the underlying problem: when access to any potential witnesses is fully controlled by the other side, that inevitably raises questions about the defense’s ability to independently investigate a case. There are also allegations by the defense that communication between defense counsel and their clients, which would ordinarily be privileged, has been reviewed by staff of the detention camps; claims that access to their clients has been limited; and that defense resources are virtually non-existent in comparison to the seemingly unlimited resources available to the prosecution. The prosecution counters these allegations, but these concerns, coupled with the above described limitations on public access to the process as a whole, leaves one to wonder if zealous advocacy is little more than an illusion in this system.

Somewhere, someone who has read this far is asking, who cares? These are the men who allegedly made 9-11 possible – they offered no process to the men, women and children who lost their lives on that day; why should we afford them any? In thinking back to my own fear on 9-11 there is a veneer of righteousness to this claim. But as a child of the South, I also remember the righteousness of those who claimed that only some among us deserved process, while for others justice came at the end of a rope hoisted by a mob. I have no desire to return to that world where the Constitution only applies sometimes, and where justice and fairness are fickle and selective.

In the litigation of these motions, both the defense and the prosecution struggle to define a procedure that can address the unique nature of these cases and the complexities they present. Defense counsel left the press conference on August 22nd with a lingering question: Does the Constitution apply to these proceedings or not? As I think of the road ahead and look beyond all the nuances of trial strategy and advocacy, this seems to be the question that remains for both sides. What will become of all of us after this process? Even if, or maybe especially if, the outcome in so many ways seems forgone, why are we turning our collective backs on the one thing that we have always held most important—the Constitution itself? Is our faith in our own system of justice and freedom so fleeting that in the face of this terrorist act, we reject it in favor of a process that will all but guarantee one outcome and one sentence? Of all the losses that I can never hope to measure since the morning of September 11, of all the ways the world has truly changed, perhaps it is the loss of the very constitutional protections that made me want to be a lawyer in the first place that scares me the most.

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