That’s right. The trials are a sham. And this isn’t Ted Kennedy, Al Gore, Jimmy Carter or some other punching bag for the Right making this charge. These claims come directly from emails written by two former military prosecutors at GITMO to their superiors complaining of a process they considered both unethical and Unamerican:

Leaked emails from two former prosecutors claim the military commissions set up to try detainees at Guantanamo Bay are rigged, fraudulent, and thin on evidence against the accused.


Two emails, which have been obtained by the ABC, were sent to supervisors in the Office of Military Commissions in March of last year – three months before Australian detainee David Hicks was charged and five months before his trial began.

More after the break . . .

Update [2005-7-31 23:42:31 by Steven D]: Link to NY Times story courtesy of muledriver.

Update [2005-8-1 0:14:5 by Steven D]: Link to affidavit of David Hicks, the Australian detainee mentioned in the above quoted story. The affidavit alleges he experienced torture at GITMO.

Update [2005-8-1 7:42:7 by Steven D]: More links here, here, here and here.

The first email is from prosecutor Major Robert Preston to his supervisor.

Maj Preston writes that the process is perpetrating a fraud on the American people, and that the cases being pursued are marginal.

“I consider the insistence on pressing ahead with cases that would be marginal even if properly prepared to be a severe threat to the reputation of the military justice system and even a fraud on the American people,” Maj Preston wrote.

. . . Maj Preston says he cannot continue to work on a process he considers morally, ethically and professionally intolerable.

“I lie awake worrying about this every night,” he wrote.

. . . “After all, writing a motion saying that the process will be full and fair when you don’t really believe it is kind of hard, particularly when you want to call yourself an officer and lawyer.”

Major Preston was transferred from the Commission preparing these hearings within a month after sending this email.  The other officer who complained to his superior, Captain John Carr, had this to say:

“When I volunteered to assist with this process and was assigned to this office, I expected there would at least be a minimal effort to establish a fair process and diligently prepare cases against significant accused,” he wrote.

“Instead, I find a half-hearted and disorganised effort by a skeleton group of relatively inexperienced attorneys to prosecute fairly low-level accused in a process that appears to be rigged.”

. . . “You have repeatedly said to the office that the military panel will be handpicked and will not acquit these detainees and that we only needed to worry about building a record for the review panel,” he said.

That this doesn’t surprise me says more about how far my expectations of legal and moral conduct have been lowered by the Bush administration than anything else.  Clearly this is outrageous.  It is also a direct violation of the Supreme Court’s order in the Hamdi case where Justice O’Connor stated that detainees must be given “a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.“

What these emails show is that clearly two military lawyers did not feel these tribunals provided a hearing before a neutral decisionmaker.  Quite the contrary, they make it clear that they had been advised, in advance, that the outcomes were already determined:

Capt Carr says that the prosecutors have been told by the chief prosecutor that the panel sitting in judgment on the cases would be handpicked to ensure convictions.

“You have repeatedly said to the office that the military panel will be handpicked and will not acquit these detainees and that we only needed to worry about building a record for the review panel,” he said.

“We only need to worry about building a record for the review panel”.  Think about that tonight, lying in your bed before going to sleep.  We now live in a country where the Executive branch and the Pentagon actively conspired to suborn the lawful orders of the Supreme Court.

If that doesn’t call for an investigation into possible offenses justifying impeachment, I don’t know what does.  This, folks, is what is known as a Constitutional Crisis