an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Australian Broadcasting Company is reporting that two former prosecutors for the Bush Administration's military tribunals have complained to their superiors in e-mails that the procedings are "rigged" and "a fraud on the American people." The transcript from the ABC radio broadcast, which contains the contents of the leaked e-mails, is here.
What's particularly interesting is that these are statements from prosecutors, not from military defense counsel.
The first e-mail came from Major Robert Preston, who complained that the procedures were "half-assed." Preston was transferred out of his assignment a month later. The second e-mail came from Captain John Carr, who also left the Office of Military Commissions:
Capt Carr says the commissions appear to be rigged.
"When I volunteered to assist with this process and was assigned to this office, I expected there would at least be a minimal effort to establish a fair process and diligently prepare cases against significant accused," he wrote.
"Instead, I find a half-hearted and disorganised effort by a skeleton group of relatively inexperienced attorneys to prosecute fairly low-level accused in a process that appears to be rigged."
Capt Carr says that the prosecutors have been told by the chief prosecutor that the panel sitting in judgment on the cases would be handpicked to ensure convictions.
"You have repeatedly said to the office that the military panel will be handpicked and will not acquit these detainees and that we only needed to worry about building a record for the review panel," he said.
The defense lawyers' complaints and those of outside groups like the American Bar Association were, it is now clear, being echoed in confidential messages by the prosecutors who would, if anything, benefit from any slanting of the process.
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, Captain John Carr, 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 CIA for security reasons.
Carr's e-mail message also said that some evidence that at least one of the four defendants had been brutalized was lost and other evidence on the same issue had been suppressed.
The article is actually worth reading. I note the predetermination claim is rejected utterly. As to the concerns of the prosecutors regarding the adequacy of administrative support potentially impacting on a fair trial, this is cause for hope. It seems American lawyers whether they are prosecution or defence appear to want a reasonably robust processes and as fairer trial as is possible in the circumstances. The rule of law is as much about a ‘culture’ or way of thinking as it is about formal rules, statutes or constitutions. Isn’t that a good thing.
I'm sorry for being intrusive in to your blog. But I am Melissa and I am a mother of two that is just trying to get out of an incredible financial debt. See my hubby is away in Iraq trying to protect this great country that we live in, and I am at home with our two kids telling bill collectors please be patiant. When my husband returns from war we will beable to catch up on our payments. We have already had are 2001 Ford repossessed from the bank, and are now down to a 83 buick that is rusted from front to back and the heater don't work, and tire tax is due in November.
I'm not asking for your pitty because we got our ownselfs into this mess but we would love you and thank you in our prayers if you would just keep this link on your blog for others to view.