ANDREA SEABROOK, host:
This is ALL THINGS CONSIDERED from NPR News. I'm Andrea Seabrook.
Another wrinkle today in the Bush administration's effort to bring Guantanamo detainees to trial; it involves the case of Omar Ahmed Khadr. He is 21 years old; a citizen of Canada. Prosecutors say Khadr was a trained al-Qaida operative who threw a grenade that killed an American soldier in a firefight in Afghanistan. He was picked up and shipped to the military prison at Guantanamo Bay where he's awaiting trial under the Military Commissions Act.
Khadr's military lawyer say they've been told by the judge in the case that they may not tell Khadr the names of the witnesses who will testify against him at trial. One of Khadr's attorneys told the New York Times the trial will begin with a presumption of guilt.
To find out what this means for the Bush administration's plans to try the Guantanamo detainees, we turn to Eugene Fidell, president of the independent National Institute of Military Justice. Thanks for coming in, sir.
Mr. EUGENE FIDELL (President, National Institute of Military Justice): It's my pleasure.
SEABROOK: Does this ever happen in civilian law; that a defendant is not allowed to know who's testifying against him or her?
Mr. FIDELL: I can't think of a comparable situation in which the civilian courts would prevent a lawyer from telling his or her own client who the government's witnesses were.
SEABROOK: Does it happen other - other places in military law?
Mr. FIDELL: No, not that I know of. In a normal military proceeding which is at court-martial, the right to confront the witnesses against you is an accepted, established part of the process; that seems to be an issue in the Military Commissions. It's really baffling how the defense is supposed to give effective assistance of counsel where they can't have communications with their own client about a key aspect of the defense.
SEABROOK: According to the New York Times, the prosecutors in the Khadr case say they fear terrorists would retaliate against prosecution witnesses. Could they be making themselves a target for terrorists?
Mr. FIDELL: It's possible that these witnesses may be at some risk if they testify. On the other hand, witnesses are often at some risk in criminal cases where there are determined adversaries of the government. It might happen, for example, in organized crime cases; it might happen in drug cases. And witnesses do get murdered from time-to-time. This is a terrible thing when it happens because it does have a chilling effect on people's willingness to assist the government in its efforts to bring people to justice.
On the other hand, you can't presume that that's going to happen. And moreover, there are steps the government can take to protect the witness who was believed to be at substantial risk of retaliation. There are witness protection programs. Maybe the government has to have a witness protection program in this kind of case as it does in other kinds of cases.
SEABROOK: You teach military justice at Yale Law School and at American University, explain to us why it's important for a defendant to know who's testifying against him or her.
Mr. FIDELL: If you don't know who's testifying against you, then you cannot effectively answer the testimony. For example, suppose the witness offered by the government has a grudge against you; suppose the accused knew that the witness had been somewhere else at the time he or she was testifying about. Without knowing who the witness is, you're really fighting this, not with one hand tied behind your back, with both hands tied behind your back.
SEABROOK: Do you expect this to be a roadblock to the military tribunals getting underway?
Mr. FIDELL: I would not expect it to be a roadblock, but one aspect that the Military Commissions after another seems to suffer from these odd imperfections and the cumulative effect, I think, is devastating on the public's ability to have confidence in the administration of justice.
When this whole process began, I think I was kind a bit an agnostic, but over the years, my orientation has changed, and I don't see how this system, even as adjusted by Congress in the Military Commissions Act of 2006, can be salvaged because it got off on a terrible footing. And the most recent evidence, namely this disclosure through the New York Times, only confirms that it's still off on a terrible footing.
SEABROOK: Thanks very much, sir, for coming in.
Mr. FIDELL: My privilege.
SEABROOK: Eugene Fidell is president of the independent National Institute of Military Justice. He's a former judge advocate in the U.S. Coast Guard.
Tomorrow, on ALL THINGS CONSIDERED, we go back 60 years in the annals of military justice to the story of African-American soldiers wrongly court-martialed and now exonerated.
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