Justice At Guantanamo?

Ed Bradley Talks To Military Lawyers For GitmoTerror Detainees

(CBS)  The war crimes trials, if they proceed, will take place in this courthouse at Guantanamo Bay. Under the military commission rules, the defendant is presumed innocent until proven guilty beyond a reasonable doubt. Up to seven military officers appointed by the Pentagon will act as both judge and jury. Instead of a unanimous verdict to convict, it takes only a two-thirds majority. The death penalty requires a unanimous verdict from a full, seven-member panel. Appeals can be made to a panel appointed by the secretary of defense, but the president has the final say.

Lt. Col. John Einwechter, a commission prosecutor, defends the commissions and says they should go forward.

"I’ve got your colleagues, in uniform, telling me that, 'We’ve looked at the rules, we’ve looked at the laws. These aren’t fair trials,'" says Bradley.

"That is the function of the defense counsel. And I think, if anything, their comments regarding the system show that they are truly independent," says Einwechter. "But what the critics need to do is allow this process to work, watch it in operation, and what they will see are fair trials that bear resemblance to a trial that they’re accustomed to."

In most trials, defendants have a right to see all the evidence against them. But in a military commission, although the defense attorneys can see classified evidence, they can’t discuss it with their clients.

"How is he then supposed to defend himself?" asks Bradley.

"There will be circumstances in which classified evidence will be presented that the accused will not be given access to," says Einwechter. "Remember, al Qaeda continues out there to plot against the United States and to plot terrorist attacks against our country. It’s essential that we strike a balance in a way that preserves our national security, while providing a fair trial."

How does that affect his defense? "Well, it makes it impossible. How you do cross-examination is you look to your client and say, 'Did you ever meet that man? Does he like you? Does he dislike you? Are there things that he’s saying that aren’t true?'" asks Einwechter. "What they do here is they make a mockery of what defending a man is."

The rules permit hearsay evidence, unsworn statements ands even statements taken under duress. The standard is any evidence the panel considers relevant and reasonable.

"That leaves a huge hole as to what types of evidence will come in, whether or not it was taken or obtained via some sort of coercion, mistreatment or even torture for that matter," says Shaffer.

"If there is evidence such as a confession that is obtained by torture, that is suspect, or that is tainted, it’s up to the judges on the commission to consider the extent to which it’s suspect or tainted, and give it appropriate weight accordingly," says Berenson.

And then there’s this: if a defendant is acquitted, he can still be sent back to detention at Guantanamo Bay until the war on terror is over, which may be decades.

"If your client is ultimately acquitted, and then, just to be told that they’re going to continue to be detained, the question you ask is, then what is this all about? What is this for?" asks Shaffer.

"If Salim wins, does he get anything? No, he goes back to the same cell. So it seems awfully a lot for show, doesn’t it?" says Swift.

"Is that fair? I mean, they come in, they’re found not guilty, by your rules. Why shouldn’t they walk?" asks Bradley.

"If you’re acquitted by a military commission proceeding, it may mean that you are not a war criminal," says Berenson. "It doesn’t mean that you’re not an enemy combatant who can be held by our forces until the end of hostilities."

"One defense lawyer said that these are just political trials, show trials," says Bradley.

"No, I think that’s grossly unfair to our military. These are not show trials, this is not drumhead justice," says Berenson. "These are going to be full and fair proceedings in the context of war. Different in some important respects from the ordinary criminal trial that we’re all used to, but tailored to the exigencies of wartime."

But right now, the courts will decide if the president has the power to tailor justice for the nation’s enemies in wartime.

Does Berenson think the courts are telling the president how to wage war? "I think the courts at this point are interfering far too much in the conduct of war, with consequences that could be very, very dangerous for the country," says Berenson.

"The federal courts aren’t intruding into the president’s power. The president is intruding into the court’s power," says Swift. "As a military officer, I don’t question the president’s ability to fight and win a war. That’s not what the president is talking about here. What the president’s talking about is handing out criminal sanctions, including the death penalty, to people who are already prisoners. He’s not talking about fighting. He’s talking about justice. And now what the government is saying is, “don’t you dare intrude into the president’s powers to hand out justice.”

What’s at stake with these commissions for both the country and the war on terror?

"What's at stake, ultimately, is this country’s ability effectively to wage war against the people who are now our enemies," says Berenson. "If someone were to wave a wand tomorrow and say that every captured al Qaeda terrorist is entitled to be treated as a criminal defendant in our normal civilian justice system, I think it would be a serious blow to our efforts to prosecute and win this war."

"And if that is indeed what happens as a result of what these defense lawyers are doing?" asks Bradley. "I mean, they’ve stopped this thing in its tracks. What do you do?"

"Then the executive branch is going to have to go back to the drawing board and try to determine what changes they need to make to protect this country without violating what the courts have told us is the law," says Berenson.