Last week, Patterico had a great post up on the status of the Gitmo proceedings, in which he called them Kafkaesque and stated the following:
The following is my most decidedly non-legal, gut reaction to the proceedings happening at GTMO. There may be legal justifications for them; I can’t authoritatively speak to that.
But I do know that, based on what I’ve read, they just don’t seem fair.
Some of the main problems: Detainees lack access to the prosecution’s evidence. They lack the right to present their own evidence. There is a rebuttable presumption in favor of the Government’s evidence. Detainees lack the right to counsel, and what access they do have to counsel is severely restricted.
Understand where I’m coming from. I’m a professional in the criminal justice system. If we ever held proceedings that denied the procedural protections that are lacking in the CSRT hearings, everyone would agree that those proceedings would be deemed completely unfair.***
What should be done with these people? Should they be given all the rights U.S. citizens charged with crimes in the U.S. have? I’m not sure about that.
But I do know that the procedures in place now just don’t seem fair. If you can’t find out what evidence the Government has against you; if you can’t present your own evidence; if you are arguing to a tribunal that is told to presume that the Government’s position is correct . . . that’s not fair. It runs a real risk of causing us to hold people who are innocent.
There has to be a better way.
I really appreciated his saying that, because not only is he right, in my opinion, but because I knew he would get flayed alive by the “hang em high” crowd in his comments. Sure enough, he did, and you can read the comments for yourself.
Today, in the LA Times, Morris Davis, the former chief prosecutor for the Office of Military Commissions, discusses why he resigned. Not surprisingly, Patterico is on to something:
In a nutshell, the convening authority is supposed to be objective — not predisposed for the prosecution or defense — and gets to make important decisions at various stages in the process. The convening authority decides which charges filed by the prosecution go to trial and which are dismissed, chooses who serves on the jury, decides whether to approve requests for experts and reassesses findings of guilt and sentences, among other things.
Earlier this year, Susan Crawford was appointed by the secretary of Defense to replace Maj. Gen. John Altenburg as the convening authority. Altenburg’s staff had kept its distance from the prosecution to preserve its impartiality. Crawford, on the other hand, had her staff assessing evidence before the filing of charges, directing the prosecution’s pretrial preparation of cases (which began while I was on medical leave), drafting charges against those who were accused and assigning prosecutors to cases, among other things.
How can you direct someone to do something — use specific evidence to bring specific charges against a specific person at a specific time, for instance — and later make an impartial assessment of whether they behaved properly? Intermingling convening authority and prosecutor roles perpetuates the perception of a rigged process stacked against the accused.
The second reason I resigned is that I believe even the most perfect trial in history will be viewed with skepticism if it is conducted behind closed doors. Telling the world, “Trust me, you would have been impressed if only you could have seen what we did in the courtroom” will not bolster our standing as defenders of justice. Getting evidence through the classification review process to allow its use in open hearings is time-consuming, but it is time well spent.
Crawford, however, thought it unnecessary to wait because the rules permit closed proceedings. There is no doubt that some portions of some trials have to be closed to protect classified information, but that should be the last option after exhausting all reasonable alternatives. Transparency is critical.
Read the whole thing. As Patterico said, there has to be a better way.