James Meek
Wednesday December 3, 2003
The Guardian

A team of military lawyers recruited to defend alleged terrorists held by the US at Guantanamo Bay was dismissed by the Pentagon after some of its members rebelled against the unfair way the trials have been designed, the Guardian has learned.

And some members of the new legal defence team remain deeply unhappy with the trials - known as "military commissions" - believing them to be slanted towards the prosecution and an affront to modern US military justice.

Of the more than 600 detainees at the US prison camp at Guantanamo, none has been charged with any crime, and none has had access to a lawyer, although some have been in captivity of one kind or another for two years.

But the US has repeatedly promised that at least some of the prisoners will be charged and tried by military commissions, an arcane form of tribunal based on long-disused models from the 1940s.

When charged, a prisoner will be assigned a uniformed military defence lawyer. The prisoners have a theoretical right to a civilian lawyer, but the US has placed financial and bureaucratic obstacles in the way of this.

A former military lawyer with good contacts in the US military legal establishment said that the first group of defence lawyers the Pentagon recruited for Guantanamo balked at the commission rules, which insist, among other restrictions, that the government be allowed to listen in to any conversations between attorney and client.

"There was a circular that went out to military lawyers in the early spring of 2003 which said 'we are looking for volunteers' for defence counsel," said the ex-military lawyer. "There was a selection process, and the people they selected were the right people, they had the right credentials, they were good lawyers.

"The first day, when they were being briefed on the dos and don'ts, at least a couple said: 'You can't impose these restrictions on us because we can't properly represent our clients.'

"When the group decided they weren't going to go along, they were relieved. They reported in the morning and got fired that afternoon."

The Pentagon's recently set up Office of Military Commissions denied the claim. "That is not true, never happened," said its spokesman, Major John Smith. "The military commission is a tool of justice. I expect some of these individuals [on Guantanamo] will plead not guilty, and will be represented zealously by their lawyers."

Yet the Guardian understands from a uniformed source with intimate knowledge of the mood among the current military defence team, six lawyers strong, that there is deep unhappiness about the commission set-up.

"It's like you took military justice, gave it to a prosecutor and said, 'modify it any way you want'," the source said. "The government would like to say we have done these commissions before. But what happened after [the Nazi cases] was the military justice system changed. What we have done is stupid. It is, I would say, an insult to the military, to the evolution of the military justice system. They want to take us back to 1942."

Two Britons, Moazzam Begg and Feroz Abassi, are among the Guantanamo prisoners that President George Bush has "designated" for trial. The military defence lawyers in Washington are still waiting for permission to fly to Guantanamo.

In an investigation into the Guantanamo prison camp, the Guardian has also learned that a number of prisoners, thought to be between two and five, are kept permanently isolated in a super-secure facility within the main prison camp at Guantanamo, Camp Delta.