Lawyers representing Salim Ahmed Hamdan in the military commission trials as well as the Supreme Court case believe there are fundamental problems with the new commission procedures outlined by the White House.
Lt. Cdr. Charles Swift outlined those problems in a congressional hearing held by the Judiciary Committee of the U.S. Senate Tuesday. Swift read from e-mails exchanged by the military lawyers assigned to prosecute the Guantanamo detainees to bulwark is argument that the military commissions are fundamentally flawed.
Air Force Capt. John Carr wrote in an e-mail in 2004 that the commission was " a half-hearted and disorganized effort by a skeleton group of relatively inexperienced attorneys to prosecute fairly low-level accused in a process that appears to be rigged." Another prosecutor, Air Force Maj. Robert Preston wrote that "writing a motion saying that the process will be full and fair when you don't really believe it is kind of hard - particularly when you want to call yourself and officer and a lawyer."
Swift told the -- that the military commission did not require the defense lawyers to receive exculpatory evidence that might clear their clients if that evidence is in the hands of other government agencies, like the CIA. He said the military commission allows the admission of evidence obtained through "rank hearsay including unsworn written statements and law enforcement agents summaries of interviews."
Swift said it became apparent as the military commission against Hamdan began, much of the evidence would be testimony by law enforcement officials who would repeat what they heard from various witnesses. The witnesses would not be made available to be cross-examined.
The military commissions also do not prohibit the use of witness statements obtained by coercion, a point Acting Assistant Attorney General Stephen G. Bradbury in the office of Legal Counsel in the U.S. Justice Department confirmed Tuesday in his testimony to the Senate Judiciary Committee.
Swift also argued that the military commissions were stacked. The appointing authority selected not just the presiding offers who perform as judges but also the panel members, who serve as jurors. Quoting Capt. Carr again, the chief prosecutor said "the military panel will be handpicked and will not acquit these detainees," Swift said.
Swift also argued that the review panel, which was supposed to review any appeals of commission proceedings, was also stacked. He identified one member, William T. Coleman Jr., who attended a meeting in July 2003 with the prosecution team to discuss its strategy.
Swift also complained that defense team has no right to call witnesses; it must ask the prosecution for permission to call particular witnesses.
"In all ten commission cases, in only a single case and then only in one instance has the defense been permitted to call a witness," Swift stated in written testimony.
He also criticized the fact that most of the documents shared with the defense counsel were marked "protected information" and so could not be shared with Hamdan. Hamdan and Australian prisoner David Hicks were also removed from their own trials during voir dire, when the jury is questioned by the prosecution and defense to determine impartiality.
Swift advocates using a commission based on the U.C.M.J. rules for courts-martial, which he told UPI were used successful to prosecute enemy prisoners in Guam during World War II.
Civilian co-counsel Neal Katyal told UPI that practice has a long tradition.
"So whether you call it a commission or a court martial makes little difference, so long as the trial takes place under existing military law. That is a minimum that the world demands, and which our law requires," Katyal said Tuesday.
Sen. Arlen Specter, R-Penn., and Sen. Dick Durbin, D-Ill., have introduced the "Unprivileged Combatant Act" to statutorily recognize military commissions.