Global Policy Forum

By Warren Richey

The right to be present throughout one's own trial - a cornerstone of American law - is a key issue confronting Congress as it works to create a fair-trial process for suspected Al Qaeda war criminals. A month after the US Supreme Court struck down the Bush administration's plan for military commissions at the Guantánamo Bay, Cuba, detention camp, lawmakers are weighing how to create a system that protects basic rights of the accused without undermining America's war on terror.

Some analysts see a ready-made template in the Uniform Code of Military Justice used by the armed forces. The Bush administration and its supporters say the UCMJ guarantees too many rights that might be exploited by Al Qaeda defendants to compromise US intelligence sources and methods. Any newly drafted military-commission process must confront a range of fair-trial issues including how to handle classified evidence and hearsay, and whether to admit as evidence information obtained under harsh interrogation tactics.

But the most discussed issue in the Supreme Court's June 29 decision was the right to be present at one's trial.

Writing for the majority, Justice John Paul Stevens called it "one of the most fundamental protections" in the UCMJ. "The jettisoning of so basic a right cannot lightly be excused...," he wrote. Although he wrote the majority opinion, only three other justices agreed with Justice Stevens that Common Article 3 of the Geneva Conventions requires that a defendant be present at his entire trial. Justice Anthony Kennedy, who provided the key fifth vote in the high court's commission decision, declined to decide that question. He did say, however, that he found it "troubling" that President Bush's commission regulations created the possibility of a conviction and sentence based on evidence a defendant had not seen or heard.

The circumstances for exclusion

Under the commission process set up by the Defense Department, defendants and their civilian lawyers could be excluded from key parts of the trial to permit the introduction of classified evidence. The commissions sought to minimize the unfairness of this provision by allowing appointed military lawyers to represent each accused war criminal. The military lawyers would be granted access to all classified evidence and to the entire trial process - but the military lawyers would be barred from discussing with their clients the content of the classified evidence and classified portions of the trial. Retired Rear Adm. John Hutson, a military justice expert and dean of Franklin Pierce Law Center, summed up the potential problem in a recent Senate hearing. He said the exclusion policy might lead to a situation in which the US government would "say to the accused: 'We know you're guilty, we can't tell you why, but there's a guy, we can't tell you who, who told us something; we can't tell you what, but you're guilty.' "

Supporters of the administration's approach say its commissions included a provision requiring that no evidence or testimony be admitted that would render the trial less than "full and fair." They say allegations of unfairness could be thoroughly examined on appeal after a conviction, rather than based on speculation about what might happen at a trial.

The right to be present at trial was deemed important enough by the Founding Fathers to guarantee it in the Sixth Amendment. The amendment requires a public trial in which the accused must be permitted to confront the witnesses against him. By compelling witnesses to deliver their accusations face to face in open court, it allows the defendant to know the extent of the government's accusations and to respond through cross-examination in a way that will permit the jury to gauge the veracity of the accusations. The defendant's presence at his trial is seen today as an effective mechanism to help reveal the truth about the accusations, rather than as crutch to protect a guilty defendant. The high court's military-commission decision was based on statutory and treaty requirements, rather than constitutional requirements. But some analysts say Congress, in its rewriting, should be mindful of constitutional mandates nonetheless.

Why defense lawyers object

Defense lawyers say the exclusion of a defendant from even a small portion of a military-commission trial undermines the defendant's ability to defend himself. It is the defendant, not his military counsel, who will know how best to confront any witness or evidence against him.

"The right to be present and confront witnesses is fundamental in the Constitution and in the case law because it is recognized that it is impossible to defend yourself if you can't see and challenge the evidence against you," says Marc Goldman, a Washington lawyer who is civilian counsel on the defense team for Guantánamo detainee David Hicks. Jonathan Hafetz, an attorney at the Brennan Center for Justice at New York University School of Law, agrees. "The right to be present throughout your trial and confront witnesses against you - particularly where information has been gained through interrogations, and possibly coercive interrogations - is fundamental," he says. "From a defense attorney's perspective, information obtained through interrogations is the most suspect and the most potentially unreliable type of evidence."

The issue of how best to handle classified information in an open trial is not new. Federal courts have operated under the Classified Information Procedures Act for many years. The law establishes a mechanism in which the judge helps identify a fair way to convert classified evidence into a declassified version that can be presented in open court. If a declassified alternative is impossible, prosecutors then face a choice of continuing the case without the classified evidence or revealing the secret. The military court system has a similar provision, and some legal experts suggest it could be used to keep commission trials open and fair.

"All of this is a balancing," says Joseph Margulies, a professor at Northwestern Law School and author of a new book, "Guantánamo and the Abuse of Presidential Power." With "some tinkering," the UCMJ can provide a legal framework for military commissions at Guantánamo, says Mr. Margulies. "If you let military judges administer the law with the flexibility that they always have, I trust that the outcome will in the vast majority of cases be fair," he says. "The confrontation clause is not an absolute," Margulies says. "Sometimes you need to give the foundation of the right, which is cross-examination of the person testifying, without ... disclosing his identity. Sometimes you have to make accommodations." But making accommodations, he adds, "doesn't mean you should throw out entirely the right of confrontation."