At long last, the military appears to be gearing up to try some of the Guantánamo Bay prisoners. In late May it announced the appointment of a chief prosecutor and a chief defense counsel, both military officers who answer to the Pentagon’s general counsel, and disclosed that it was reviewing plans for an execution chamber. The trials are not designed to distinguish the guilty from the innocent so much as to obtain guilty verdicts for a select few. To this end, they are designed to be an entirely inside job. The military is prosecutor, defense counsel, judge, appellate reviewer and executioner. In theory, there is one exception–detainees who can find one may be represented by a civilian lawyer of their choosing.
But the only thing more difficult than getting out of Guantánamo may be finding a lawyer willing to participate as civilian defense counsel in a military tribunal. The difficulties start with the fact that the detainees, highly unpopular clients in any event, have no access to the outside world, so they can’t exactly call around for lawyers. But that wasn’t enough of a deterrent for the military. It requires all civilian attorneys to agree in advance that their conversations with clients can be monitored, thereby obliterating the attorney-client privilege and making it impossible to develop the kind of trust necessary for an effective defense. Civilian lawyers must obtain a security clearance at their own expense. And even then they won’t get to see certain classified evidence used against their client, which only military lawyers will be permitted to view.
Absent special permission, civilian lawyers may not do legal or factual research on the case away from the site of the proceedings (presumably Guantánamo), and may not even talk about the case with anyone outside their own defense team. Together, these rules bar any meaningful investigation or trial preparation. And even though the military has delayed bringing anyone to trial for more than a year and a half, the civilian attorney must agree not to request any delays for any reason unrelated to military commission proceedings. Oh, and unless a detainee has his own money hidden away somewhere, the lawyer won’t be paid.
It is possible that some lawyers might sign up despite these obstacles, but there’s a real question whether under these conditions a lawyer could do anything more than legitimize a fixed game. The rules for civilian counsel suggest that the military would prefer the tribunals to remain a family affair, with every participant ultimately answerable to Donald Rumsfeld and George Bush. That may insure that the show trials run smoothly, but if so, all these trials will ultimately show is that we know how to write rules that guarantee we get our way. The rest of the world is already all too acquainted with that lesson.