Constitutional Problems Plague System, Says ACLU

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GUANTÁNAMO BAY, Cuba – A coalition of military and civilian lawyers, assembled as part of the American Civil Liberties Union's John Adams Project, filed pretrial motions in a Guantánamo military commission today requesting legal relief for some of the worst of the constitutional flaws plaguing the commission system. The ACLU's John Adams Project is a partnership with the National Association of Criminal Defense Lawyers sponsoring expert civilian counsel to assist the under-resourced military defense counsel for several Guantánamo detainees.

Motions filed today in the case of several 9/11 detainees charged that the government should treat the Constitution and the Bill of Rights as governing law in commissions proceedings; bar CIA agents from the courtroom during the proceedings; and ultimately dismiss the case against several detainees because the military commissions lack jurisdiction to hear it.

"Military commission proceedings that ignore the Constitution fly in the face of over 200 years of law establishing the right to a fair and public trial," said Denny LeBoeuf, Director of the ACLU's John Adams Project. "The flawed military commission proceedings cannot possibly deliver real justice, and any outcome of this process will immediately be suspect."
 
Among other challenges in the case of the United States v. Mohammed, a consolidation of cases against five 9/11 detainees, the ACLU today called on the government to:

• treat the Constitution and the Bill of Rights as governing law in the military commission proceedings. In June, the U.S. Supreme Court ruled that the U.S. Constitution applies to the government's detention policies at Guantánamo when it concluded that detainees have a right to challenge their detention through habeas corpus. The ACLU's motion charges that it is inconsistent for the government to assert that the accused have no constitutional protections in a legal proceeding that is created by congressional statute and that is held on de facto American territory.

• dismiss the charges because they are being retroactively applied and deny the accused a fair trial.  Two of the oldest protections in the U.S. Constitution – against "ex post facto" charges and "bills of attainder" – prohibit making special laws for an individual or group, criminalizing conduct and associations after the fact, and levying special punishments based on past conduct. The motions filed today assert that the Military Commissions Act passed by Congress in 2006 violates these important protections.

• bar CIA agents from the courtroom. The ACLU charges, and government officials have admitted, that the five 9/11 defendants have been subjected to "enhanced interrogation techniques" – including beatings, prolonged stress positions, sleep deprivation and other forms of torture – at the hands of the CIA. One of the motions filed today protests the presence of individuals at every proceeding in Guantánamo who are never identified, but who are widely accepted to be CIA agents. The motion asserts that the presence of the CIA agents interferes with the defendants' rights to a fair trial and their right to be free of intimidation and coercion.

• dismiss the case. The coalition lawyers argue that military commissions have no jurisdiction over cases that do not include "armed conflict," a term defined under the laws of war that does not include isolated alleged terrorist acts by a loosely-affiliated group from outside the U.S.

"These and all cases facing military commissions at Guantánamo should be tried in U.S. or military courts that adhere to the rule of law," said LeBoeuf. "This process completely disregards the rule of law and due process. The next president must close Guantánamo and put an end to these sham proceedings immediately upon taking office."

The motions were filed on behalf of detainees Khalid Sheikh Mohammed, Ali Abdul Azziz Ali, Mustafa Ahmed al Hawsawi and Ramzi bin al Shibh. A fifth defendant in the consolidated case, Walid bin Attash, was unable to join the motions because they were not translated into Arabic by the government-provided translator in time for bin Attash to review them. Poor translation has been an ongoing problem in the 9/11 cases, with the government claiming that one interpreter per defendant is sufficient, and that they are not required to provide written materials in Arabic.

More information on the John Adams Project is available online at: www.aclu.org/johnadams