New Shame

The disastrous economy and now the 2012 elections have pretty much shoved other important news off the radar screen, especially when it comes to Guantanamo Bay. That's unfortunate because there's still a lot going on down in the US Gulag, most of it shameful abuse of America's highest ideals. The latest is noted by Kal Raustiala, professor of law and director of the Burkle Center for International Relations at UCLA. In an opinion piece written for the Los Angeles Times, Professor Raustiala comments on a devastating change imposed on lawyers for the inmates facing military commission trials.

The order requires all correspondence between the accused and their appointed military lawyers to be reviewed by federal officials.

The proposed order is a mistake, one that threatens to jeopardize the progress made in reversing Guantanamo's tainted legacy as a legal black hole. It likely violates the 6th Amendment's guarantee of the right to counsel, which has long been understood to permit lawyers to communicate confidentially with their clients. [Emphasis added]

Imagine: everything discussed by the defendant and his lawyer can now be viewed by the prosecutors. Every detail, every mitigating circumstance, the names of every witness, every possible defense, every theory is wide open and fair game. The whole point of the confidentiality between the lawyer and his client, a frank discussion of the matter, is lost along with any notion of fair play in the proceedings. Up until now, the military defense lawyers have had to labor with one hand tied behind his back. Now both hands are tied.

Woods' order does not simply raise legal concerns, however. By violating the sanctity of attorney-client privilege, it jeopardizes the perception of American military commissions as fair and just, a perception that is crucial if these trials are to succeed.

To see why, consider the fundamental purpose of such trials. Why not simply imprison the suspected terrorists in perpetuity without trial? The chief reason, dating to the landmark Nuremberg tribunal, is the belief that a just and fair trial of even our worst enemies is the best vindication of our nation's values, and the best way to ensure that cycles of revenge are tamped down, individuals are held accountable and the truth emerges.

War-crimes trials have long been tarred by cries of "victor's justice." It is only through scrupulous adherence to fair, neutral and time-honored procedures that we can forcefully refute such criticism. [Emphasis added]

I am one of the critics Raustiala refers to when it comes to these military commission trials. I believe that they are a coy emulation of justice, mere dog-and-pony shows designed to give the appearance of justice with none of the substance. I believe that this latest move merely confirms my worst suspicions.

And I am deeply ashamed of what this country has become.