'A Process That Appears to Be Rigged'

The New York Times reports that two Air Force lawyers assigned to prosecute prisoners at Guantanamo Bay privately expressed strong doubts about the fairness of the military commissions in which they were expected to participate. "You have repeatedly said to the office that the military panel will be handpicked and will not acquit these detainees and we only needed to worry about building a record for the review panel," Capt. John Carr (since promoted to major) wrote in a March 2004 e-mail message to the chief prosecutor, Col. Frederick Borch. Carr said the handling of the tribunals "may constitute dereliction of duty, false official statements or other criminal conduct," adding that "the evidence does not indicate that our military and civilian leaders have been accurately informed of the state of our preparation, the true culpability of the accused or the sustainability of our efforts." Carr said his office was preparing to "prosecute fairly low-level accused in a process that appears to be rigged." Around the same time, Maj. Robert Preston sent an e-mail message to another senior officer in the prosecutors' office in which he warned that the trials represented "a severe threat to the reputation of the military justice system and even a fraud on the American people."

In an e-mail reply to Carr and Preston, Borch (who has since retired) called their charges "monstrous lies" and affirmed, "I am convinced to the depth of my soul that all of us on the prosecution team are truly dedicated to the mission of the office of military commissions, and that no one on the team has anything but the highest ethical principles." Brig. Gen. Thomas Hemingway, speaking on behalf of the Pentagon, told the Times there was nothing to Carr and Preston's complaints, which he attributed to "miscommunication, misunderstanding and personality conflicts."

As the Times notes, however, the prosecutors' criticism jibes with what military defense attorneys and outside groups such as the American Bar Association have been saying: that the military commissions, which lack many of the procedural safeguards of both civilian trials and courts-martial, are meant only to create the illusion of a "full and fair" process–a goal they are not accomplishing very well.