The Wednesday editorial, “Guantanamo defense lawyers show integrity,” is an example of misguided emotion superceding fact. Not only are the legal arguments wrong, but the facts those arguments are based on never happened.
No military defense counsel assigned to the Office of Military Commissions ever resigned, was reassigned or fired over concerns with military commission rules. It is not true and never happened.
What is true is that the military lawyers assigned to the Office of the Chief Defense Counsel were nominated by the judge advocate general of each of their branches of service based on their defense counsel experience, maturity and professionalism. From that pool, the acting chief defense counsel selected the best to make up his team.
Let no doubt exist, the military defense counsel assigned to represent an accused before military commissions will act zealously on behalf of their clients and raise every appropriate motion, issue and argument that is in their client’s best interest. Individuals tried before military commissions during World War II expressed great surprise and appreciation at the zeal, skill and effort their counsel exerted on their behalf. The military defense counsel will do the same before military commissions today.
Although monitoring might occur in limited circumstances, nothing an accused says to his lawyer, or anything derived from there, can be used against them in court. In fact, not only does a prosecutor in a case have no say whether monitoring occurs, he will not even be aware if it occurred. This is clear in the military commission rules, and claims that it can be used as a government tactic for trial are wrong. Monitoring at military commissions may be done only for security and intelligence purposes. It is similar to monitoring provisions already allowed in federal district court and Bureau of Prisons cases.
Military commissions provide a fair trial and incorporate principles of justice, including the presumption of innocence, the burden of proof beyond a reasonable doubt, lawyer representation, no adverse inference for choosing to remain silent and, even though the editorial claims the opposite, the ability to present evidence, call witnesses and challenge evidence presented against an accused.
Contrary to editorial claims that the government is hiding the military commission rules, every issuance of new orders and instructions was publicly announced to the press, questions answered and the
rules posted on the Internet. There is no secret to the process. The military commission’s Web
site has all the rules and other information available at
Take a good look at the rules. Military commissions are a tool of justice that provide for a fair trial and are appropriate in dealing with violations of the law of war.
Air Force Maj. John D. Smith is a judge advocate (attorney) assigned to the Office of Military Commissions. Send comments to [email protected]