Military Prosecutors Criticized Detainee Trials
MICHELE NORRIS, host:
Two senior prosecutors working on war crimes trials against Guantanamo detainees quit their posts and complained that the military trials were rigged against the alleged terrorists. Those allegations were revealed in a series of confidential e-mails recently released by the Defense Department. The messages reveal a deep division within the team of military lawyers that were responsible for prosecuting enemy combatants under the military commission system established by President Bush in 2001. Jess Bravin is a legal affairs reporter for The Wall Street Journal. He's been covering this story, and he joins us now in our studios.
Thanks so much for coming in.
Mr. JESS BRAVIN (The Wall Street Journal): Sure thing.
NORRIS: Who wrote these e-mails, and what did they say?
Mr. BRAVIN: These e-mails are written by two line prosecutors appointed by the Pentagon to take part in trials of enemy combatants at Guantanamo Bay. One of them was then-Captain John Carr; he's now a major. The other was Major Robert Preston. They're both Air Force officers, and they were there to assemble the charges of specific war crimes for a handful of prisoners.
NORRIS: Captain Carr and Major Preston, did they share--were they sort of on the same page in expressing their concerns?
Mr. BRAVIN: Yes, they were. Captain Carr's e-mail talks about things such as disregarding evidence that a particular defendant claimed to have been tortured, that he mentions other prosecutors who were asked if they had any evidence that this prisoner had been mistreated, the other prosecutor says no, and Captain Carr says, `That's not true. We know there's evidence because we have his statement saying that he was,' for instance.
He also relates a number of what might be casual conversations that suggest that prosecutors shouldn't worry about getting a conviction because the military commission that will hear the charges has been handpicked and they should only worry about what the review panel that would consider any convictions thinks and, more seriously, what academics might think 10 years down the line when they are studying the proceedings for scholarly purposes.
NORRIS: The two men, Captain Carr and Major Preston, said that the system had been essentially rigged in order to win an easy conviction. How was the system stacked against these alleged terrorists?
Mr. BRAVIN: Well, one issue has to do with exculpatory evidence. Prosecutors are required in the civilian system, and also under the military system, to turn over to the defense any evidence they come across that would tend to exculpate the defendant. The e-mail here says that exculpatory evidence was being overlooked, that the prosecution was not taking steps to preserve it and record it, that it just wasn't that important to them. A defense side that doesn't get access to exculpatory evidence that the prosecution finds really has one arm tied behind its back.
NORRIS: Major Robert Preston actually said that he, in good conscience, couldn't write a legal motion saying that the proceedings were full and fair because this evidence had been withheld. Is there any kind of legal justification for withholding that evidence?
Mr. BRAVIN: Well, I don't know. I mean, the term that Major Preston uses, which is kind of interesting, is that he says he has trouble sleeping at night because he's being expected to vouch for the idea that the proceedings will be full and fair, yet he doesn't believe that they will be. And `full and fair' has become sort of a term of art in the military commission world because the president's order says even though the rules of evidence and court procedures and so on that are expected in civilian courts or courts-martial don't apply, Major Preston says he just doesn't believe they really will be full and fair.
It's important to say, however, that the Defense Department was aware of these allegations and says it conducted a thorough investigation of them and found that they were without merit. The official statement from the Department of Defense is that there were personality conflicts in this office, there was a great deal of miscommunication. But when it comes to the substance of misconduct, to either ethical transgressions or criminal misconduct, the official word from the Pentagon is there were no problems.
NORRIS: Jess Bravin, thanks for coming in to talk with us.
Mr. BRAVIN: Sure thing.
NORRIS: Jess Bravin is a legal affairs correspondent for The Wall Street Journal.
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