Every so often, a judge is forced to reread the Sixth Amendment to the U. S. Constitution. It’s pretty short and not at all difficult to understand: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
It’s very likely that some federal judges will have occasion to consult that section when the cases now pending before the so-called military commissions at Guantanamo prison reach them. The accused–six Arabs said to have been involved in the events of September 11, 2001–have been denied each and every right enumerated by the Sixth, and they’re on trial for their lives.
The Sixth Amendment guarantee of a speedy trial doesn’t impose an absolute time limit on prosecutions, but it requires the government to act within reason. The government has accused these men of crimes that occurred almost seven years ago. They’ve been in custody for almost five years. Witnesses have disappeared in the interim. The physical evidence was sold for scrap. These men should have been tried years ago, and their trial will be public only in the sense that a few reporters will be allowed to witness select portions of it. The proceedings are being held in Cuba on land leased to the United States as a naval installation and accessible only by boat or airplane. Much of the evidence is thought to consist of state secrets and will not be aired in public. These defendants have a strong claim that their trial is neither speedy nor public.
There will be no jury to weigh the evidence against them, but a panel of military officers. The absence of a jury makes the process very like the proceedings employed by the Catholic Inquisitions of the Dark Ages, just the sort of abuse that the enlightened thinkers who gave us the Bill of Rights meant to prohibit.
The defendants are not to be tried in the district in which their alleged crimes were committed. In fact, they are not to be tried in the United States at all, but in a foreign country that has no connection whatever to the proceedings against them. So remote are these prisoners in time and space from the events at issue in their trial that a meaningful investigation of witnesses, evidence, and other elements of a defense is out of the question.
The accused were only recently apprised of the accusations against them. They were held without charges for years, disabling them from even contemplating a defense. There is no sound precedent for their extra-legal “detention,” and their current plight stands as a stark example of the injury that can result to those imprisoned without due process of law.
These accused will not be presented with the witnesses against them but with second-hand reports, some from interrogators who employed brutal tactics amounting to torture as commonly conceived. They will have no opportunity to test the credibility, reliability, or memory of the witnesses against them, because the witnesses won’t be there. Just words on paper. There may once have been videotapes of the interrogations that yielded the evidence against these accused, but the government destroyed them.
The defendants have no compulsory process to bring witnesses of their own to testify. All of them were kidnapped from foreign countries. If there are alibi witnesses or character witnesses that might aid the fact-finder, they are far beyond the reach of a subpoena.
The six prisoners were systematically denied access to lawyers from the time they were taken into custody until very recently. Their interrogations were conducted outside the presence of counsel. Even now, the defendants’ consultations are monitored by the government, and their lawyers are routinely denied access to critical evidence. They are effectively unrepresented, and their attorneys at trial will be taking orders from the very military officers who will decide their guilt or innocence.
Although the embedded mass media have convicted all six men, they are innocent until proved guilty in proceedings that conform to the Sixth Amendment. This trial doesn’t satisfy that criterion, and an independent judiciary must certainly strike down these proceedings on appeal, notwithstanding Congress’ efforts to deny the defendants’ right to be heard by a judge. Of course, many of us have come to doubt that we have an independent judiciary–and some judges have given us good reason for worry–but the law is a force in itself.
Also at work, alongside the words of the Constitution, is professional responsibility. Colonel Morris Davis, assigned to prosecute prisoners at Guantanamo, resigned his commission and retired from the Air Force last year because of legal deficiencies in the process. Three other officers who were assigned to prosecute asked for transfers to other duty. The attorneys who agree to prosecute these cases will be acting contrary to the lawyers’ code of professional responsibility, and they know it. Will they carry out orders that offend the ethic to which they are bound as constitutional officers? Maybe not.