Military Commission Trials About to Start for Six Guantanamo Detainees

November 11, 2003
U.S. Army Col. Frederick Borch: "If the American people and the world are not convinced that we were full and fair, then I think we'll have done damage to the Constitution. I'm certainly sensitive to that."

The United States is about to try six detainees held at the Guantanamo Bay Navy base in the first military judicial commissions since the end of World War II. The cases are ones likely to produce convictions, said U.S. Army Col. Frederick Borch, chief prosecutor for military commissions for the Department of Defense. Borch spoke at the Law School Nov. 4 on "The Lawyer's Role in National Security" at the invitation of the Student Legal Forum. He was joined by U.S. Department of State attorney Himamauli Das, who works in the Office of Legal Advisor on dismantling the financial systems of terrorist organizations.

Formerly a professor at the Judge Advocate General's School and a defense attorney in more than 300 cases, Borch was teaching at the Naval War College as an expert on terrorism during 9/11. Those attacks caused "a watershed in the fight on terrorism," he said. "We've had a revolution." Previously, terrorist attacks had been treated like crimes; now they're seen as an act of war, he said, and the Hague and Geneva Conventions are now seen as in effect.

Military commissions are special war-related courts and provide the best venue for handling terrorism cases, Borch said. The Guantanamo commissions are the first set up since more than 3,000 German and Asian prisoners were tried for war crimes after the end of World War II, when such courts were also used by the British, French, Dutch, and Soviets. "Commissions are going to have an impact on international and humanitarian law," Borch predicted.

U.S. Department of State attorney Himamauli Das

Before 9/11, war was defined as conflict between governments, but Das said the United States now considers it possible to be at war with non-state actors. There has been a "big increase in the federal effort to track down terrorist financing and there's better coordination between agencies now," he said.

Asked by law professor Rosa Brooks, who moderated the event, how important civil liberties concerns were to the prosecutors, Borch answered, "The starting point is, what does the Constitution say?" Despite the fact that the country is facing a new style of attack and is therefore having to devise new responses, "we have to be careful we don't damage the Constitution," he said. Borch said it is especially important to "cherish the rights in the Bill of Rights.

"If the American people and the world are not convinced that we were full and fair, then I think we'll have done damage to the Constitution. I'm certainly sensitive to that." Borch said that respect for constitutional principals is "what sets us apart from the terrorists."

The U.S. Supreme Court has said that the Bill of Rights does not apply to military commissions, Borch said, but the commissions will nonetheless adhere to three standards of fair proceeding. First, there will be a presumption of innocence. Second, proof must be established beyond a reasonable doubt, and third, every defendant will have a defense lawyer. Borch said about 20 civilian lawyers have expressed an interest in being defense lawyers for detainees. There are about 660 detainees now held by the United States who could face charges.

Borch said the trials would be "no different from what happens at the ICTY [International Criminal Tribunal for Yugoslavia]." He predicted that there will be an appeals process and further that "at some point there will be a federal court that will look at what we've done."

Stressing the need to win in the court of public opinion too, Borch said, "My goal is to have the trials as open to the public as possible. From 25 to 50 seats will be set aside for the media. To the greatest extent possible, I will not be using any classified evidence. Some cases might require some closed proceedings."

Borch said the commissions will soon start hearing cases. "At some point, indefinite detention wears thin with the public.

"The war on terrorism is not a metaphor like the 'war on drugs' or the 'war on poverty'," he stressed. "When the facts about these people come out at trial, it will educate the public about what they were up to and validate the decision to detain them."

Borch said he expects the defense to file motions to dismiss the charges on the grounds that the detainees qualify for combatant immunity. He believes he can disprove the claim. "The distinction is that al Qaeda didn't just attack military targets, they also attacked civilians." He also expects defense motions challenging the president's authority to create the commissions.

Das said that for his part, great pains are taken to ensure that there is enough "good information" found to justify action. The State Department is currently pursuing about 320 entities suspected of being money conduits to terrorists and in suits brought against them the courts have so far found that their designation as funders of terrorism has been borne out by documents. The notion of "material support" is defined broadly to mean "everything from providing financial support to giving expert advice," he said, noting that terrorist organizations such as Hamas and Hizbollah have been skillful at getting popular support because they meet humanitarian needs through their charitable organizations.

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