Anyone watching the recent court proceedings in the military commissions at Guantanamo Bay couldn't have helped but notice that several of the lawyers sitting on the prosecution side of the courtroom were not in uniform. That's because two of the five lawyers prosecuting the alleged mastermind of the USS Cole attack aren't members of the military at all: They are lawyers from the Justice Department.
"Right now we've got eight full-time prosecutors that are assigned to the active and pending cases in the military commission system," says Lisa Monaco, the assistant attorney general for National Security at the Justice Department.
The eight Justice Department attorneys are part of the prosecution teams working on two of the marquee trials the military commissions will decide: the trial of Abd al-Rahim al-Nashiri, the man who allegedly planned the attack against the USS Cole in Yemen in 2000, and the trial of the alleged Sept. 11 mastermind, Khalid Sheikh Mohammed, and his alleged co-conspirators, who could have to answer charges in court in the spring.
Monaco says that in the debate over whether to try terrorism suspects in military commissions or in the U.S. civilian courts, a fundamental detail about military commissions got lost: The military system has been reformed to hew more closely to federal courts in this country.
In a way, the presence of so many Justice Department lawyers is meant to be a testament to just how much the military system has changed. The question yet to be answered is how much of the work the Justice Department did ahead of an expected criminal trial will translate — and end up appearing in a military trial instead.
"We've got folks who are spending full time down at Guantanamo," Monaco says. "We've got lawyers who are spending time in court ... so they are participating fully both at Guantanamo and back in the States."
Those Justice Department lawyers work for Brig. Gen. Mark Martins, the chief prosecutor of the military commissions. He details them to cases, and they answer to him as well as the Justice Department.
Martins has been called Guantanamo's detox man. That's because his mission is to provide legitimacy to a military commission system that until recently was seen as extremely toxic. The military commissions for Guantanamo detainees were originally envisioned as a way to process the hundreds of detainees once held at the prison expeditiously. As time went on, circumstances required that the system become something more — so the Obama administration worked with Congress to reform them.
'Law Is Being Applied'
Martins is the sixth person to fill the chief prosecutor's job in seven years. One chief prosecutor who preceded him was accused of rigging the military commissions' process to ensure convictions. Another chief prosecutor quit after he said he felt pressured to include evidence derived from torture in commission proceedings. He later said he left because he didn't feel he could do that in good conscience. Martins says military commissions are different now — that they are fair.
"Law is being applied, judges are interpreting laws, counsel are arguing for different pieces of a particular motion, and justice is being done," he says. "We're just absolutely committed to that."
The military commission and federal court system are seen as similar enough now that civilian prosecutors can work within the military commissions' rules and still try a case effectively. Their presence provides more than just a vote of confidence from the Justice Department about the fairness of the military commissions. They bring with them something more practical as well: the expertise in trying complicated terrorism cases that military lawyers might lack.
Matthew Waxman, a professor at Columbia University who used to be in charge of detainee affairs in the Bush administration, says the world is watching how these military commission trials play out. "The Obama administration wants to show that the new and improved military commissions are a fair, legitimate and effective option," he says.
A False Choice?
Not everyone is convinced.
Critics still have reservations. For example, defense attorneys complain that it is difficult to represent their clients. It isn't just the logistics of getting to Guantanamo Bay Naval Base in Cuba that makes it hard for lawyers to develop a relationship with the defendants. There are also strict security rules that make attorney-client communication difficult. A judge is deciding now how mail between detainees and their lawyers will be handled.
And there are other, more fundamental, concerns: Detainees don't have the right to confront an accuser if that accuser is an unnamed intelligence officer, for example. And defense attorneys for al-Nashiri say they have yet to get the discovery they need to build a defense.
Martins acknowledges that there are problems that need to be worked out — from transparency of proceedings to logistics. He freely admits that the two systems are not identical. But as he sees it, there is a place for both military commissions and the federal courts in trying terrorism suspects. It isn't one or the other.
"This all-or-nothing choice that is sometimes portrayed between a law enforcement approach and a military approach is a false choice," he says.
The big test for military commissions could come as early as April, when Khalid Sheikh Mohammed and the other alleged Sept. 11 plotters are expected to be arraigned. Martins hasn't picked a lead prosecutor for that case. He wouldn't rule out, however, that a Justice Department lawyer could be sitting in the first chair.
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