With preparations begun for the first military-commissions trial for detainees at Guantanamo — six "high-level" prisoners who could get the death penalty — the customary attacks on the fairness of the proceedings there are mounting here and abroad. Adding to the discord is the refusal of Brig. Gen. Thomas Hartmann, legal adviser for the military commissions, to exclude any evidence against the defendants that has been extracted through waterboarding.
Particularly troublesome to the Bush administration's continued insistence that there are careful standards of due process at Guantanamo Bay was the resignation last October of Col. Morris Davis, former chief prosecutor for the military commissions at Guantanamo. In an article for the Los Angeles Times (Dec. 10), he wrote he had "concluded that full, fair and open trials were not possible under the current system."
Precipitating Davis' act of conscience was the supervisory appointment over him of Defense Department General Counsel William J. Haynes, long criticized for having been instrumental in authorizing what are euphemistically called "coercive interrogation techniques" on terrorism suspects, some of which are purportedly torture.
Before Haynes became Davis' supervisor, Davis, while still chief prosecutor, had told Haynes there might be some acquittals during the Guantanamo Bay trial. But, as Davis told The Nation (March 10, 2008), Haynes response was:
"Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We've got to have convictions."
Indeed, a military lawyer, Navy Lt. Cmdr. Charlie Swift, told me that when he was assigned to a detainee at Guantanamo Bay, he was ordered to represent him by obtaining a confession from him. This presumption of guilt at Guantanamo (not only in that case) hardly squares with how we describe our rule of law to the world.
Was Defense Secretary Robert M. Gates, a marked improvement over Donald Rumsfeld, comfortable over the resignation of former chief prosecutor Davis? There's been no comment. As Attorney General Michael Mukasey is finding out, it's hard to maintain one's own reputation for fairness while serving in this administration.
Davis recalls that Haynes told him that the forthcoming military commissions trial "will be the Nuremberg of our time" — referring to the 1945 tribunals where the dread defendants included such prominent Nazis as Hermann Goering, Albert Speer, Joachim von Ribbentrop and Rudolf Hess.
In Sen. Christopher Dodd's superb book, "Letters from Nuremberg: My Father's Narrative of a Quest for Justice" (Crown, 2007), he quotes his father, Thomas Dodd, who became the No. 2 prosecutor in the American team at Nuremberg:
"Those of us who were privileged to serve at the Nuremberg Trial are proud of the entire proceeding. … Every right of the defendants was scrupulously observed. They were given every possible opportunity to make every explanation and every possible defense.
"Witnesses were obtained for them merely at their request. Documents were made available, library facilities were at their disposal, and throughout every hour of the trial they were afforded every opportunity to answer every charge."
As others and I have reported, the procedures at Guantanamo — by glaring contrast — are the very opposite of those at Nuremberg. The Nazis had vigorous lawyers waging their defense; they were able to talk to lawyers in private without a video camera watching; and all their correspondence and notes were not handed over to the military.
And that's only part of the utter mockery of due process at Guantanamo. But at Nuremberg, American prosecutor Thomas Dodd said of that trial: "This was a demonstration of judicial process honestly at work. I saw it take place — this moral victory — from day to day, slowly but surely in the dock and at the defense tables."
But the Bush administration (reported in the Feb. 16, 2008, Economist) has actually authorized the State Department, "in a memo to American embassies," to suggest that the military commissions "be compared to the Nuremberg trials, partly because no one fussed when the Nazis got the death penalty and partly because, say the generals, legal protections (at Guantanamo) will be greater than at Nuremberg." Does Condoleezza Rice really believe that?
In a lead editorial (Feb. 12), Financial Times nailed Guantanamo as "a surrender of the rule of law in the face of jihad totalitarianism. The shameful collusion of the U.S. Congress in helping the administration revamp the military tribunals after the Supreme Court revoked them (Hamdan v. Rumsfield, 2006) cannot disguise that." And this is being done in our name.
Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of many books, including "The War on the Bill of Rights and the Gathering Resistance" (Seven Stories Press, 2004).