lawsnotmen.org The Robert Jackson Steering Committee

Eric Holder
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

March 11, 2010

Dear Attorney General Holder,

The Robert Jackson Steering Committee, a group of lawyers and journalists founded to uphold the principles of the Nuremberg Trials, urges the Department of Justice to proceed with trying Khalid Sheikh Mohammed and other suspected 9/11 terrorists in federal criminal court, and not in military commissions.

We enumerate several substantial problems with military commissions:

1) They are illegal as they are not regularly constituted as matter of the Geneva Conventions and international law.

2) There is no necessity for them.  We are not under martial law (the courts are open) and these persons are not being tried in occupied territory (like Germany after WWII) – the two principal situations where military commissions have been used in our past.

3) They are cynically structured to provide third-class justice (courts first class, courts-martial second class).  A January 26, 2010 report of the bipartisan Congressional Research Service entitled “Comparison of Rights in Military Commission Trials and Trials in Federal Criminal Court” (available at http://www.fas.org/sgp/crs/natsec/R40932.pdf) points up the deficiencies of these military commissions such as (1)  Admissibility of statements following torture in certain circumstances, (2) Evidence derived from impermissible interrogation methods is not barred, (3)  Evidence seized outside the US without search warrants is not excluded, (4)  The accused is entitled to one "reasonably available" defense counsel, (5)  No mention of the attorney-client privilege, (6)  In a capital case, the accused is entitled to additional counsel "to the greatest extent practicable", (7)  Ex post facto law may be applied, (8)  No right to speedy trial, (9) Trials may be closed to public, (10) Conviction by two thirds of jurors rather than unanimity, (11) Hearsay evidence admissible if direct testimony not available or would have adverse impact on military or intelligence operations, (12)  Government cannot be compelled to disclose classified information, and (13) Only one peremptory challenge to jury selection.

For attentive observers such as the Robert Jackson Steering Committee, the reason the Military Commissions were put in place was so that evidence gained by coercive techniques and torture could be admitted and evaluated, and Constitutional guarantees that are the essence of fair trials could be avoided. We believe that when you see this or that argument made in favor of the military commissions as opposed to civilian criminal courts, Americans should understand that it is not about fine points of legal niceties like jurisdiction or charges; at its heart it is about how to get convictions of people that have been tortured by us.

Even the most repugnant defendant is innocent until proven guilty and is entitled to a fair trial. We believe it is important for the United States to have this trial in its first class system, with a jury of Americans hearing the evidence, and the tools used in prior federal terrorism trials being applied by the judge to this matter.  Federal law is adequate to charge crimes by these defendants.  Competent counsel for the United States and for the defense should be able to argue every permissible point in court so that there is no doubt for ourselves or the world that a fair trial was had by all.

Sincerely,

Robert Jackson Steering Committee
David Swanson, Chair

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