Lawyers for detainees contrast federal court and military commission process

October 3, 2008Duke Law News

Oct. 3, 2008—Two veteran trial lawyers who represent “high-value” detainees at Guantanamo Bay offered Duke Law students insights into the military commission process, and contrasted it with the federal court process on Sept. 30. The lunchtime discussion was sponsored by Duke’s Center for International and Comparative Law and the Guantanamo Defense Clinic.

Thomas Durkin is a Chicago-based criminal lawyer experienced in dealing with classified information and allegations related to terrorism in the federal courts. Based in Washington, D.C. and also a veteran criminal lawyer, Edward MacMahon Jr., defended Zacarias Moussaoui, the only person tried in federal court with crimes related to the Sept. 11, 2001 attacks.

Durkin and MacMahon represent Guantanamo detainees Ramzi Binalshibh and Walid bin ‘Attash through the John Adams Project of the American Civil Liberties Union and the National Association of Criminal Defense Lawyers. “The Military Commissions Act, while it provides for civilian counsel, specifically says that civilian counsel cannot be compensated by the government,” Durkin explained. “There is no way for a private lawyer to be appointed in that system, which is why the John Adams Project was started by the ACLU and the NACDL.”

MacMahon observed that clients such as bin ‘Attash, whose charges relate to the bombings of the U.S.S. Cole in 2000 and U.S. embassies in East Africa in 1998, and Binalshibh, who is charged with conspiracies directly relating to the Sept. 11, 2001 attacks, are highly unsympathetic. “Remember that it’s our legal system that is really stressed by what happens in these cases,” he advised. “Really hard cases make it hard to do the right thing — and that applies even to some of the most honest prosecutors that [we] have ever dealt with. The prize of winning these cases and, indeed, the overarching breadth of what can happen has caused people … frankly, to perjure themselves to federal judges trying to win these cases.”

Durkin and MacMahon devoted much of their presentation to the issue of classification of evidence before the military commissions. Unable to talk publicly about the evidence presented in their respective cases because most of it has been classified, they referred students to The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals by Jane Mayer; MacMahon read out loud her account of his client’s torture at “black sites” around the world. Noting that federal courts and military commissions have similar procedures for handling classified information, and having dealt with it extensively in the Moussaoui case, MacMahon questioned why so much evidence has been deemed classified by the military commissions.

“There have been military commissions before,” said MacMahon. “These particular military commissions, in my judgment, were created to keep the information that’s in The Dark Side out of the public eye — how these people were really treated.” He expressed the view that the Guantanamo military commissions were specifically intended to help suppress evidence that the U.S. has engaged in torture. “They did not want a federal judge ruling on classified information matters that really show torture, violations of federal and international law by very high officials in the CIA, specifically. By keeping this information down in Cuba they are hoping to keep it from coming out,” he said.

Both Durkin and MacMahon argued that the lack of transparency in the military commission proceeding poses its biggest challenge to mounting a defense and, more broadly, to the integrity of the legal system.

“The public access and disclosure issues, to me, destroy the whole purpose of having a trial,” said MacMahon. “Moussaoui’s case was a great trial in terms of what was disclosed, and the American people learned about how poorly their government performed before Sept. 11. It all came out. Family members got to come to court and talk. It’s a catharsis and a disclosure at the same time when you have a criminal case like this.” Greater public access would also offer a valuable opportunity to “discredit Al Qaeda,” he added.

“To have [these trials] sealed and set away in Cuba, unlike Nuremberg, we have squandered, I believe, every chance of using this to discredit their philosophy.”

Durkin and MacMahon ended their presentation with an appeal for law students to stay aware of and involved with what they termed the erosion of civil liberties in America.

“If you guys don’t do something about it, there are a lot of people who want to take this system away,” said Durkin. “The only people who can stand up to it are the lawyers. [The federal courts] are the government’s courts. The government gets to pick the judges, the government gets to pick the prosecutors, and the government even gets to pick the lawyers who defend the poor people. That leaves only one independent person in the system, and that’s the private lawyer. If private lawyers don’t step up to the plate soon — and that’s you — you won’t have a system that’s worth participating in.”
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Thomas Durkin and Edward MacMahon spoke at Duke Law on September 30, 2008.

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