WASHINGTON – The system created by the United States for trials by military tribunal of foreign terrorism suspects held at Guantanamo Bay is fundamentally unfair and hopelessly antiquated, military lawyers assigned to represent these prisoners said on Wednesday.
“We are concerned with virtually every aspect of the military commission process and the impact that will have on our client’s chances to get a fair trial,” Navy Lt. Cdr. Philip Sundel told Reuters.
Sundel and Army Maj. Mark Bridges were assigned by the Pentagon on Feb. 6 to represent Ali Hamza Ahmed Sulayman al Bahlul of Yemen.
The United States on Tuesday brought charges for the first time against prisoners at the U.S. naval base at Guantanamo Bay, Cuba, charging al Bahlul and Ibrahim Ahmed Mahmoud al Qosi of Sudan with conspiracy to commit war crimes. The Pentagon said they face trial by tribunals of military officers, formally called commissions.
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The Pentagon identified al Bahlul as an al Qaeda “propagandist” and former bodyguard of Osama bin Laden.
Army Maj. Mark Bridges said he and Sundel plan a defense case that not only challenges evidence presented against al Bahlul, but attacks the foundation of the tribunal process.
“We do envision raising a lot of motions related to the rules and the procedures themselves,” Bridges said in an interview.
But he doubted these motions will not get a fair hearing because the rules do not permit a truly independent review. He said the same Pentagon official who approved the charges against his client also may rule on these types of motions.
The tribunals will mark the first such U.S. trials since World War II.
“The bottom line is it’s an outdated system that was pulled off the shelf and dusted off from the World War II era. The law has advanced a lot since then, both internationally and domestically. The standards that were applied then simply aren’t acceptable today,” Bridges said.
– No rights groups at tribunals
He said he and Sundel have not been given a chance to meet their client yet, and do not know whether al Bahlul has been informed of the charges. Bridges also said he has not seen any prosecution evidence in the case.
“The checks and balances that we expect from a system today to make sure that the process is fair and that it is not subjected to improper influences by any of the participants don’t exist in the military commission system,” said Sundel.
President Bush in November 2001 authorized military tribunal trials for non-U.S. citizens caught in what he calls the global war on terrorism. Human rights groups and legal activists have said the rules for the tribunals are rigged to yield convictions and handicap defense counsel.
“I think military commissions provide a full and fair process,” said Maj. John Smith, a lawyer and spokesman for the Pentagon’s office of military tribunals.
“We have the presumption of innocence. We have the highest burden of proof in criminal court — proof of guilt beyond a reasonable doubt. We have representation by zealous defense counsel. They have the ability to present evidence and call witnesses.”
Marine Corps Maj. Michael Mori, who represents Australian Guantanamo prisoner David Hicks, echoed the criticism. Hicks, one of four Guantanamo prisoners given lawyers, has not yet been charged.
“When you use an unfair system, all you do is risk convicting the innocent and providing somebody who’s truly guilty with a valid complaint to attack his conviction. It doesn’t help anybody. It only helps the people who created the system to predict the outcome,” Mori said.