Justice for Detainees?

Should civil libertarians celebrate the administration's decision to try five  alleged 9/11 co-conspirators on criminal charges in federal court?  Glenn Greenwald regretfully characterizes the decision as a scam, stressing that detainees "for whom conviction is less certain will be ...put in military commissions:" the administration's plan for a "multi-tiered justice system" is a set-up for "a rigged game of show trials."  ACLU Executive Director Anthony Romero, however, calls the decision "a huge victory for restoring due process and the rule of law."
   
In fact, as soon as the Administration announced the transfer of the 9/11 conspiracy cases to federal court, the ACLU announced the dismantling of the John Adams Project, initiated in April 2008, to assist in representing "high value" Guantanamo detainees subject to prosecution before military commissions.  "We can now finally achieve the real and reliable justice that Americans deserve," Romero stressed, hailing this "victory" (for which he credits the ACLU). The trouble is that the victory is partial at best; the military commissions that the ACLU vehemently opposes are still in use, as Romero lamented.  So why is the Adams Project being dismantled when some detainees are still subject to the injustices of trial by commission?
   
An ACLU spokesman responds (in a November 19th email) that the Adams Project is no longer needed because the military commissions process has been significantly improved: "(t)he most recent (2009) revisions to the Military Commissions Act ... require that the defense have access to evidence and resources in the military commissions comparable to those provided in federal court, and instructs the Secretary of Defense to refer to the ABA guidelines when allocating defense resources in capital cases. The revised Military Commission Act also includes improvements such as compensation for civilian counsel in capital cases.  Having worked to secure this legislative outcome, there is no longer a need for the John Adams Project to act as the primary resource for the defense in these cases."
   
In other words, according to the ACLU, the military commissions are new and improved (thanks at least partly to the ACLU).  On the other hand, according to the ACLU, the amended commissions process is "fatally flawed" and "beyond repair," (in the words of a press release issued in October 2009 when Obama signed the amendments into law).  Anthony Romero described the military commissions are "unsalvageable" less than two weeks ago, while praising the transfers of 9/11 defendants to federal court: "The ACLU has seen first-hand the legal debacle of the military commission and has repeatedly called for their abolition." Or, as Romero stated in May 2009 when Obama announced his intention to amend but not end the commissions: "These military commissions are inherently illegitimate, unconstitutional and incapable of delivering outcomes we can trust. Tweaking the rules of these failed tribunals so that they provide 'more due process' is absurd; there is no such thing as 'due process light.'" Dismissing proposed reforms, he swore to "litigate this before they can proceed, absolutely."
   
I could go on: examples of the ACLU's unequivocal opposition to the Obama- as well as Bush-era military commissions are numerous and easy to find.  (You can find additional commentary on commission reforms here, and here.)  And while in some instances, the ACLU references 2009 "improvements" to the military commissions, it emphasizes that they are greatly outweighed by continuing, gratuitous abuses and repeatedly calls for abandoning the commissions entirely.
   
These inconsistencies may partly reflect the strategic dilemmas posed to advocacy groups like the ACLU by efforts to amend laws they strongly oppose. Do they compromise and support the amendments or demand repeal instead of reform?  Or both?  It depends, obviously, on the substance of achievable reforms and the political prospects of repeal.  In the case of the military commissions, opposition has generally been unyielding: In August 2009 responding to proposed amendments to the Military Commissions Act, the ACLU joined a coalition of civil liberties groups that urged abandoning the commissions, stressing that amending the act would not ensure "swift" and "fair" justice.  And, earlier this month, when the ACLU announced it was discontinuing the Adams Project, it did not offer improvements in the Military Commissions Act as a reason; instead it attributed the project's closing to the transfer of five detainee cases to federal court, which would "finally deliver the justice that Americans deserve and trust." The ACLU promises to continue the fight for "fair and constitutional resolution of all detainees cases," but the Adams Project is declaring victory and going home.                                                   
   
So the question remains, if the ACLU is continuing the fight for due process for Guantanamo detainees why is the project being dismantled?  If the fight can proceed without the John Adams Project, why was it necessary?  The answers to both questions may be partly financial.  The ACLU is under some financial stress: last month, Anthony Romero reported that an anonymous donor who'd recently contributed about $20 million a year (estimated by insiders to represent about 25 percent of the ACLU's budget) was discontinuing his giving (reportedly because of the financial crisis).  The Adams Project has been expensive and its funding somewhat controversial.  (It was initially funded by a transfer of $15 million from ACLU reserves; inquiries in November 2008 by a New York Times reporter regarding authorization for that transfer ended after Romero sent an angry letter to the Times.)  According to an ACLU budget report issued belatedly to the national board this past June, actual, un-audited expenses for the project in its first year of operation totaled about $2.4 million. (Since then, the project has reportedly generated additional costs of about $1.6 million.) A majority of first year costs, at least, were attorney's fees, which reportedly totaled about $2 million between April '08 and April '09.
   
So it's worth noting that one of the improvements now cited by the ACLU in offering the amended Military Commissions Act as a reason for dismantling the Adams Project was "compensation for civilian counsel in capital cases." John Adams Project lawyers have reportedly worked for money and for free (according to the ACLU, many hours were compensated and many were not.)  Supporters of the project explain that it would not have been possible to find attorneys willing and able to represent high value detainees facing prosecution before military commissions without some compensation.  Skeptics wonder how much money, at what rate, the ACLU actually paid to cooperating attorneys. (Commission proceedings were officially suspended for much of 2009, but the ACLU reports that there were ten active commission prosecutions at the time of Holder's announcement in mid November '09 and John Adams affiliated lawyers were "involved" in six of them.)
  
If I were queen, private counsel for all Guantanamo detainees would at least have the option of being paid well for their work.  (Then again, if I were queen, much of their work would not have been necessary.) But this question of compensation is a delicate one, partly because of general hostility to defense attorneys who represent people effectively presumed guilty of horrific crimes -- a hostility intensified in these cases by particularly strong opposition to providing detainees with the full panoply of due process rights.  Being paid for their work, defense counsel are vulnerable to angry, ill-informed charges of ambulance chasing (if not complicity with terrorists). Pro bono counsel has at least a hope of persuading people that they're motivated by ideals, specifically a selfless dedication to ensuring fair judicial processes for all.
  
If Glenn Greenwald is right, (and the fix is in) defense counsel appointed or retained for the five alleged 9/11 plotters seem destined mainly to provide the appearance of justice to show trials - - which is not to say they should decline to participate.  At Slate, David Feige sketches out an even more troubling scenario: good criminal defense attorneys will mount challenges to the prosecution raising all the abuses to which the defendants were subject, inadvertently making bad law as all their challenges fail and the abuses are effectively legitimized.  
   
Should civil libertarians celebrate the transfer of the 9/11 prosecutions to federal court?  The possibility of fair civilian trials in these cases was probably foreclosed years ago by the physical and judicial abuse of detainees (not to mention the political pressure to convict and execute alleged mass murderers).  With or without civilian trials, there will be no "huge victories" for justice in these cases, although there may be some victories for public relations.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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