Two Prosecutors Say Terror
Trials are Rigged
The New York Times
Two Prosecutors Faulted Trials for Detainees
By NEIL A. LEWIS
Published: August 1, 2005
WASHINGTON, July 31 - As the Pentagon was making its final
preparations to begin war crimes trials against four detainees at
Guantánamo Bay, Cuba, two senior prosecutors complained in
confidential messages last year that the trial system had been
secretly arranged to improve the chance of conviction and to
deprive defendants of material that could prove their
innocence.
The electronic messages, obtained by The New York Times,
reveal a bitter dispute within the military legal community over
the fairness of the system at a time when the Bush administration
and the Pentagon were eager to have the military commissions, the
first for the United States since the aftermath of World War II,
be seen as just at home and abroad.
During the same time period, military defense lawyers were
publicly criticizing the system, but senior officials dismissed
their complaints and said they were contrived as part of the
efforts to help their clients.
The defense lawyers' complaints and those of outside groups
like the American Bar Association were, it is now clear,
simultaneously being echoed in confidential messages by the two
high-ranking prosecutors whose cases would, if anything, benefit
from any slanting of the process.
In a separate e-mail message, the chief prosecutor flatly
rejected the accusations by his subordinates. And a military
review supported him.
Among the striking statements in the prosecutors' messages was
an assertion by one that the chief prosecutor had told his
subordinates that the members of the military commission that
would try the first four defendants would be "handpicked" to
ensure that all would be convicted.
The same officer, Capt. John Carr of the Air Force, also said
in his message that he had been told that any exculpatory
evidence - information that could help the detainees mount a
defense in their cases - would probably exist only in the 10
percent of documents being withheld by the Central Intelligence
Agency for security reasons.
Captain Carr's e-mail message also said that some evidence
that at least one of the four defendants had been brutalized had
been lost and that other evidence on the same issue had been
withheld. The March 15, 2004, message was addressed to Col.
Frederick L. Borch, the chief prosecutor who was the object of
much of Captain Carr's criticism.
The second officer, Maj. Robert Preston, also of the Air
Force, said in a March 11, 2004, message to another senior
officer in the prosecutor's office that he could not in good
conscience write a legal motion saying the proceedings would be
"full and fair" when he knew they would not.
Brig. Gen. Thomas L. Hemingway of the Air Force, a senior
adviser to the office running the war crimes trials who provided
a response from the Defense Department, said that the e-mail
messages had prompted a formal investigation by the Pentagon's
inspector general that found no evidence to support the two
officers' accusations of legal or ethical problems.
Colonel Borch, who has since retired from the military, sent
his own e-mail message to Captain Carr and Major Preston on March
15, 2004, with copies to several other members of the prosecution
team the same day, outlining his response.
In his message, Colonel Borch said he had great respect and
admiration for Captain Carr and Major Preston. But their
accusations, he said, were "monstrous lies." He did not, however,
address any specifics, like stacking the panel.
"I am convinced to the depth of my soul that all of us on the
prosecution team are truly dedicated to the mission of the office
of military commissions," he wrote, "and that no one on the team
has anything but the highest ethical principles."
Colonel Borch did not respond to telephone messages left at
his home. Captain Carr, who has since been promoted to major,
declined to comment when reached by telephone, as did Major
Preston. Both Captain Carr and Major Preston left the prosecution
team within weeks of their e-mail messages and remain on active
duty.
General Hemingway said the assertions in the e-mail messages
had been "taken very seriously and an investigation was conducted
because of the allegations about potential violations of ethics
and the law."
He said in an interview that the Defense Department's
inspector general spent about two months investigating the
accusations and reviewing the operations of the prosecutor's
office. "It disclosed no evidence of any criminal misconduct, no
evidence of any ethical violations, and no disciplinary action
was taken against anybody," the general said. He also said that
no evidence had been "tampered with, falsified or hidden."
General Hemingway declined to discuss any specifics of the two
prosecutors' accusations, but he said he now believed that the
problems underlying the complaints were "miscommunication,
misunderstanding and personality conflicts." The inspector
general's report has not been made public but was sent to the
Pentagon's top civilian lawyer, he said.
Copies of the e-mail messages were provided to The Times by
members of the armed forces who are critics of the military
commission process. The documents' authenticity was independently
confirmed by other military officials.
The Bush administration and the Pentagon have faced criticism
about the legitimacy of the military commission procedures almost
since the regulations describing them were announced in 2002.
The rules, which in essence constitute a new body of law
distinct from military and civilian law, allow, for example,
witnesses to testify anonymously for the prosecution. Also, any
information may be admitted into evidence if the presiding
officer judges it to be "probative to a reasonable person," a new
standard far more favorable to the prosecution than anything in
civilian law or military law. It is unclear whether information
that may have been obtained under coercion or torture can be
admissible.
The trials of the first four defendants began last August in a
secure courtroom in a converted dental clinic at the naval base
at Guantánamo. Before they could start in earnest, the
trials were abruptly halted in November when a federal judge
ruled they violated both military law and the United States'
obligations to comply with the Geneva Conventions.
But a three-judge appeals court panel that included Judge John
G. Roberts, President Bush's Supreme Court nominee, unanimously
reversed that ruling on July 15.
Defense Department officials have said they plan to resume the
trials in the next several weeks. They said they also planned
soon to charge an additional eight detainees with war crimes.
The two trials expected to resume shortly are those of Salim
Ahmed Hamdan, a Yemeni who was a driver in Afghanistan for Osama
bin Laden; and David Hicks, an Australian who was captured in
Afghanistan, where, prosecutors say, he had gone to fight for the
Taliban government.
In his March 2004 message, Captain Carr told Colonel Borch
that "you have repeatedly said to the office that the military
panel will be handpicked and will not acquit these detainees and
we only needed to worry about building a record for the review
panel" and academicians who would pore over the record in years
to come.
Captain Carr said in the message that the problems could not
be dismissed as personality differences, as some had tried to
depict them, but "may constitute dereliction of duty, false
official statements or other criminal conduct."
He added that "the evidence does not indicate that our
military and civilian leaders have been accurately informed of
the state of our preparation, the true culpability of the accused
or the sustainability of our efforts." The office, he said, was
poised to "prosecute fairly low-level accused in a process that
appears to be rigged."
He said that Colonel Borch also said that he was close to Maj.
Gen. John D. Altenburg Jr., the retired officer who is in overall
charge of the war crimes commissions, and that this would favor
the prosecution.
General Altenburg selected the commission members, including
the presiding officer, Col. Peter S. Brownback III, a longtime
close friend of his. Defense lawyers objected to the presence of
Colonel Brownback and some other officers, saying they had
serious conflicts of interest. General Altenburg removed some of
the other officers but allowed Colonel Brownback to remain.
In his electronic message, Captain Carr said the prosecution
team had falsely stated to superiors that it had no evidence of
torture of Ali Hamza Ahmed Sulayman al-Bahlul of Yemen. In
addition, Captain Carr said the prosecution team had lost an
F.B.I. document detailing an interview in which the detainee
claimed he had been tortured and abused.
Major Preston, in his e-mail message of March 11, 2004, said
that pressing ahead with the trials would be "a severe threat to
the reputation of the military justice system and even a fraud on
the American people."
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