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Eight years ago this month, this column celebrated the Supreme Court’s important decision in Boumediene v. Bush,1 which struck down the provisions of the 2006 Military Commissions Act that deprived detainees at Guantanamo of the right to bring habeas corpus petitions.2 While noting that the decision offered some hope that the United States would turn the page on its post-9/11 extra-constitutional excursion, the thrust of the column was to highlight the array of travesties that were unfolding in the military commission prosecutions. Based upon what was publicly disclosed about those wholly unprecedented and bizarre processes, and undaunted by the prospect that outrage might give rise to hyperbole, I offered this observation: “[M]ake no mistake about it: the military commission process that is unfolding at Guantanamo is a farce.”3
Sadly, history has confirmed that this assessment was no exaggeration. It is more than a little sad to note that eight long years later, Brigadier General John G. Baker, Chief Defense Counsel for the Military Commission Defense Organization (MCDO), also describes the military commissions as “a legal farce.”4 In this month’s cover story, General Baker catalogues the litany of abuses that more than justify that harsh characterization. Persistent denigration of the defense function, pervasive government misconduct, and the perverse obsession with trying to keep secret the details of the torture that was inflicted upon the accused — notwithstanding that it is the worst-kept secret in the history of the republic — have irreversibly earned the branding as a farce.
Rather than employing the prosecution of alleged enemy combatants as a means to showcase America’s commitment to the rule of law, these proceedings are a stain on the nation. The upshot of this folly is that America’s enemies are vindicated in their harshest critiques and in the assertion that the nation is hypocritical in its purported dedication to human rights and constitutional principles.
There is, however, one aspect of the sorry spectacle at Guantanamo Bay that should be a source of pride for every American, as well as for all those who love liberty and who recognize that the true greatness of a nation and a people is revealed when times are toughest. The women and men who have served the MCDO are heroes for the ages. They are true “champions of liberty.”
Every lawyer who has worked on the defense against these prosecutions has had to endure hardship and indignity that should never be seen in an American legal proceeding. Restricted access to clients, inadequate physical facilities and housing arrangements, government intrusion on the defense function, and secret intrusion by other governmental agencies are just some of the challenges. Additionally, these are also among the most complex and expansive prosecutions ever undertaken, with unprecedented volumes of discovery and massive witness lists resulting from investigations conducted in dozens of countries. And, of course, by seeking death, these prosecutions are geometrically more complex because the ultimate sentence is on the table, necessitating a broad mitigation investigation. General Baker’s article provides some of the jaw-dropping data that puts the challenge into context.5 But the military commission proceedings at Guantanamo have also extracted a heavy toll on the civilian attorneys and service personnel who have been detailed to this defense. General Baker compellingly describes the many sacrifices endured by the defense teams.6 Notwithstanding the considerable sacrifice, many have chosen commitment to their clients over career considerations. And many have indeed lost opportunities for promotion because their work in defending the rule of law has not been recognized.
Political leaders of all stripes are quick to praise the bravery of the nation’s uniformed men and women who place themselves in harm’s way to protect national security. And that praise is well-earned. At the same time, however, we must never lose sight of the fact that bravery can be demonstrated in many ways. Those who recognize that the same values for which service men and women are prepared to shed blood in the field of combat must also be upheld in a legal proceeding display an equally worthy manifestation of bravery. Though largely unrecognized, the lawyers who have been fighting for constitutional principles for a decade through the representation of some of the most reviled accused persons in U.S. history are role models for democracy.
And, as is patently evident in General Baker’s article, they are led by a fiercely dedicated patriot who wears his uniform and the principles for which it stands with dignity and determination. For much of the pendency of the military commission proceedings at Guantanamo, there was a disparity in the rank of the head of the MCDO and the chief prosecutor. But a little known provision of the National Defense Authorization Act of 2014 changed that by requiring equivalency in rank.7 This change in law paved the way for the appointment of General John Baker.
While fully recognizing the skill and dedication of General Baker’s predecessors,8 many of whom served during the darkest days of these proceedings, in John Baker the MCDO has a powerful and persuasive advocate. General Baker’s record of service to the United States of America and the defense function is extraordinary. (See the profile of General Baker on page 19.) His willingness to speak out with pride and determination on behalf of the women and men who have upheld the noblest aspirations of the Sixth Amendment under the most difficult of circumstances should be an inspiration to all Americans. I can say conclusively that it is an inspiration to the defense bar.
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NACDL is honored to publish General Baker’s observations, and proudly dedicates this issue of The Champion to each and every defense lawyer, and the support staff of the MCDO, who soldier on, day in and day out, year in and year out, fighting every inch of the way in these woefully misguided military commission prosecutions to uphold the dignity of our nation. They will set an example for the ages of just exactly what it requires to fight for the principles of democracy. Their legacy will be the one shining light that endures from this dark chapter in American history.
- Boumediene v. Bush, 128 S. Ct. 2229 (2008).
- Norman L. Reimer, Guantanamo: Peering Through the Keyhole at America’s Soul, The Champion, July 2008 at 7.
- John G. Baker, Defending the Rule of Law: The Military Commissions Defense Organization, The Champion, July 2016 at 18.
- P.L. 113-66, sec. 1037. Grade of Chief Prosecutor and Chief Defense Counsel in Military Commissions Established to Try Individuals Detained at Guantanamo (providing that the Chief Defense Counsel and the Chief Prosecutor in the military commissions must be of equal grade).
- Previous Chief Defense Counsel for MCDO listed in the order that they served: William Gunn, Dwight Sullivan, Steven David, Peter Masciola, Jeffrey Colwell, and Karen Mayberry.
About the Author
Norman L. Reimer is NACDL’s Executive Director and Publisher of The Champion.
Norman L. Reimer
1660 L Street, NW, 12th Floor
Washington, DC 20036
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Cover Photo: Brigadier General John G. Baker, USMC
Taken by Zach Schermerhorn ©NACDL 2016