CONDUCT UNBECOMING these proceedings. It is not far-fetched to imagine that U.S. citizens Jose Padilla and Yasser Esam Hamdi, who have already been designated as enemy combatants, could be tried by such commissions. What is at stake is the integrity of the very notion of due process, the presumption of innocence and the promise of a fair trial. The White House and only the White House created this inferior system of trial and punishment. The military can only be expected to comport itself with the honor and integrity that comes with the uniform. The procedural pitfalls in these commissions, though, are just too numerous to expect that any of those charged with crimes could get a fair trial. Excessive power will inevitably be used excessively. We must provide appropriate bulwarks against abuse. involvement in terrorism.' The Military Order produced a firestorm of criticism from across the political spectrum. Conservative columnist William Safire said that the order would establish "Soviet-style" tribunals because it failed to guarantee many basic rights that are protected both under the American Constitution and international law. When the final rules were approved in July 2003, it became clear that the criticism was justified. According to the rules, the Defense Department chooses the military officers that serve as adjudicator of fact and law, and chooses the military defense counsel as well. The Defense Department chooses the people who will hear any appeal. The government can listen in on the conversations the accused has with his attorney. The prosecution can use secret evidence against the accused, and the accused has no way to compel the government to produce evidence or witnesses showing his innocence. The government has the power to change the rules in the middle of the trial, including the elements of the offense of which he is accused so it would not have to prove things that it could not prove. At the end of the trial, if acquitted, the accused could still be detained indefinitely. If convicted, he could be put to death with no outside review whatsoever. Under no stretch of the imagination can such proceedings be considered “full and fair trials," as the president promised in his Military Order. No matter how the Defense Department tries to dress them up,' these military commissions cannot provide justice in the eyes of the world. Six people have already been designated to face these unfair tribunals in Guantánamo Bay, Cuba, and two have now been charged. Hundreds of other Guantánamo detainees could also face them. They could also be used to try other suspects, including those arrested in the United States. That rales - mcluding the definitions of crines – can be changed at any une, even during a trial by mirary officiak. Ze rus ir De Tu Bourg toe for me Be Lovesancos and determining the cements de prNLI ZA JAČ E Stest get for vanas Horses, are not being on de corniss on and can be charged it ay ume Defendants have no right to a speedy trial – or even a trial at all – but can be heid indefinitely without charge. There is no time limit for bringing any detamce *ed as an a eged enemy combatant before a commission to face charges, or before any other military or judicial forum that could resolve factual or legal cisputes about whether the detainee has done anything to warrant further imprisonment. Guality verdicts in all but capital cases can be moosed even if one third of the military officers or the commission believe the defendant is innocent. Commission rules are so broad that they may extend to non-citizens accused of civilian crimes. While the Defense Department says it is planning to use commissions to try persons detained abroad and held in Guantánamo Bay, Cuba, the rules allow much broader use. Military commissions could be used domestically - as has already been suggested with respect to some defendants currently in civilian terrorism trials. The rules define crimes of terrorism so broadly that military trials could also be used to prosecute non-citizens for isolated acts. Why the Guantánamo Military Commission Trials Cannot Provide Justice No independence, no review, and no outside appeal. The procedures outlined for military commissions fail to provide for an impartial and independent tribunal, nor are the military commissions subject to any meaningful outside check on their authority. The military commissions are an entirely closed system, subject to the control of the president or secretary of defense, with no appeal allowed to any civilian court. The appointing authority, who has now been appointed by the secretary of defense, will have ultimate control over the entire military commission proceeding, including the appointing of commissioners, the review panel and the ultimate disposition of the case." While Secretary Rumsfeld has designated Maj. Gen. military lawyer, as the appointing authority, putting this degree of power into the hands of a political appointee simply does not offer any guarantee of impartiality or independence and violates basic principles of American justice and international law. The procedure violates fundamental due process protected by the Fifth Amendment, as well as the specific requirement of the Third Geneva Convention (article 106) that defendants tried in military tribunals must have access to appeals “in the same manner as the members of the Armed Forces of the Detaining Power."" The review procedures do not offer a real appeal. The appointing authority controls selection of review panels, which may be appointed for specific cases, and the secretary of defense has the power, in some cases, to set aside the review panel's recommendations." These provisions render illusory the order's guarantee of an appeal, a requirement under American justice and international law. There is no appeal to any body - even an administrative panel outside the military command structure. The sentence of a military commission becomes final when it is affirmed by the secretary of defense. Punishment which could include execution can be carried out with no outside review whatsoever. Judicial review appears to be specifically foreclosed by the rules, whether by direct appeal or by petition for a writ of - By contrast, courts-martial under the Uniform Code of Military Justice permit a direct appeal to the Court of Appeals for the Armed Forces, a vilian Article I court that is not subject to any control by the Defense Department. Review by the Supreme Court of the United States is available by petition for a writ of certiorar Although the court-stripping language of the rules appears to be absolute, government awyers have said that a federal court would have unsdiction in a habeas corpus proceeding to consider whether a particular defendant is constitutionally subject to trial by military commission, but only if the trial takes place on United States soil. However, the Defense Department has made clear that it plans to conduct military commissions in Guantanamo Bay, Cuba, and the Justice Department is contending in consolidated cases that will be heard shortly in the Supreme Court that federal courts lack any juntsdiction to consider the habeas challenges of prisoners in Guantánamo.' The military lawyers assigned to the defense by the office charged with administering the commissions have taken the very unusual step of filing a brief amicus curiae with the Supreme Court in a habeas corpus challenge by detainees at the camp in Guantánamo Bay, Cuba. Their brief does not tackle the Issue of federal jurisdiction in Guantánamo generally, but does urge civilian review of any trials that take place in Guantanamo, and urges the Supreme Court to preserve such review. Secret evidence. Again, contrary to public assurances that the Defense Department is committed to ensuring the right of an accused to confront the prosecution's evidence, the military commissions have been carefully crafted to ensure that the accused will see only evidence that the government allows to be seen. AMERICAN CIVIL LIBERTIES UNION that is. The rules permit evidence to be withheld from the defendant, and from the defendant's civilian lawyer, when necessary to protect against the disc.osure of material that has been classified, as well as classifiable" material material that is unclassified but that the government later decides meets the standard for classification. While the rules require civilian lawyers to be cleared to see classified material, a cleared lawyer does not have a right to see the material, even if he possesses sufficient clearance to view it. Under the order, even the defendant's military lawyer may not be entitled to view the withheld evidence, but may instead be required to attempt a defense with no ability to consult with his or her client - on the basis of a heavily redacted summary. Finally, even if the evidence is neither classified nor "classifiable" - because the government cannot meet its own standards for classification evidence may still be withheld from the defendant for unspecified “national security" reasons. All of this information is called "protected information" and must be handled according to special procedures. Evidence could be withheld even if it is potentially exculpatory - that is, even if it could tend to show that the defendant is innocent. The rules do contain a general requirement that the prosecution "shall provide the Defense with access to evidence known to the Prosecution that tends to exculpate the accused," but this provision is made subordinate to requirements to keep secret "protected information." If the exculpatory "protected information" is in the government's possession, but is not used at trial, the government has no obligation to reveal it, even in summary form, to anyone - not the defendant, not the civilian lawyer and not the military lawyer. The rules certainly assume that many cases will rely substantially on evidence the defendant will have no ability to confront. The result will be a CONDUCT UNBECOMING serious risk of wrongful convictions. While the evidence may be provided – in whole or in part to cleared defense counsel, defense counsel will simply not be able, in many cases, to test the veracity of the evidence without consulting with his or her client. Information that intelligence officers may regard as reliable, and which would appear entirely credible on its face, can fall apart when the accused is able to explain that the information is the result of personal bias, mistake or rivalry within a family, clan or religious group. Cleared counsel who cannot discuss the evidence with a defendant are unable to provide this essential check on what is often little more than rumor or innuendo, but which may be given unwarranted credibility as "classified" information. The rules are dramatically different from those required for trials in either Article III federal courts or courts-martial under the Uniform Code of Military Justice (UCMJ). Ordinary civilian and military trials have special procedures to safeguard classified information from inappropriate disclosure, but they do not allow the withholding of basic information from the defendant. Most importantly, the government may only redact classified information or substitute a summary for classified information where (1) in a civilian trial, the court finds that the summary "will provide the defendant with substantially the same ability to make his defense as would disclosure of the specific classified information," or (2) in a military trial, the military judge finds that the classified information is "relevant and necessary to an element of the offense or a legally cognizable defense" and that its disclosure is "necessary to afford the accused a fair trial." If the government's summary does not meet the test, the court is required to dismiss the case or impose another appropriate sanction. By contrast, the military commission rules provide no such standard for summaries of classified information, nor do they say that the court must dismiss the case if the government does not meet the standard. The military commission rules fly in the face of President Bush's campaign promise to end the use of secret evidence against Arabs and Muslims, even in civil immigration hearings. Instead of ending secret evidence, the rules would explicitly permit, for the first time in American history, the use of evidence not revealed to the accused or his civilian lawyer to establish guilt in a criminal proceeding. Secret evidence could be used even if the accused faces the death penalty. No right to compel attendance of witnesses to aid the defense. The rules specifically grant the chief prosecutor's office the authority to issue subpoenas for witnesses or to produce documents. The chief defense counsel's office is given no right to subpoena witnesses. In both ordinary civilian and military trials, the right to compel attendance of witnesses and production of documents and other evidence to aid the defense is guaranteed and absolutely basic to a fair trial. While the prosecution bears the burden of proof, the defense must still be able to obtain witnesses and documents that cast doubt on the reliability of the prosecution's evidence, as well as to establish elements of an affirmative defense for which the defense bears the burden of proof. These safeguards are respected in trials in Article III courts. For example, in the case of Zacarias Moussaoui the government is seeking a death sentence for Moussaoui as an alleged conspirator in the Sept. 11 attacks, and has also charged Moussaoui with other terrorism offenses that do not carry the death penalty. The government refuses to allow the defense to call a top Al Qaeda official for questioning who reportedly would testify that Moussaoui was not involved in the Sept. 11 conspiracy. Because Moussaoui faces trial in a court that respects the right of the defense to call adverse witnesses, the judge has dismissed the death penalty charges, allowing the government's |