Honor Bound
Chief defense counsel promises zealous defense of detainees
When Air Force Colonel Will A. Gunn was asked by a British
journalist whether he considered himself a patriot, he found the answer in a quote from Thomas Paine: “He that would have his own liberty secure must guard even his own enemy from oppression.
If he does not, he establishes a precedent that will reach even himself.”
Gunn, a 24-year veteran of the Air Force and a Harvard-trained lawyer, is the chief defense counsel for the “enemy combatant” detainees being held at Guantanamo Naval Base in Cuba; he is in charge of their defense before the military commissions convened under the president’s order of November 13, 2001, which authorized the use of such commissions to try non-U.S. citizens detained in the course of the “war on terror.” Gunn spoke at Duke Law School October 21, in an International Week event co-sponsored by the Center on Law, Ethics and National Security, the Program in Public Law, and the Office of Student Affairs.
Four detainees (of the 550 captured in Afghanistan and held at Guantanamo Bay) currently have cases before commissions that were “gaveled” in late August. Originally scheduled to begin hearing evidence in December 2004, the commissions were suspended by the November 8th order of Judge James Robertson of the United States District Court for the District of Columbia, ruling on a motion brought on behalf of Guantanamo detainee Salim Ahmed Hamdan; Judge Robertson’s ruling was under appeal at press time.
Gunn outlined how the commissions differ from other criminal proceedings: They consist of a panel of three to seven military officers, only one of whom–the presiding officer–is a lawyer; the panel makes all findings of fact and law, including complex issues of international and constitutional law; evidence will be admitted provided that “it is probative to a reasonable person,” raising the likelihood that hearsay will be allowed and lowering documentary standards. The findings of the commissions are not subject to judicial review. The burden is on the government to prove its case beyond a reasonable doubt, and detainees appearing before military commissions have the right to counsel.
“That’s where I come in and where my people come in,” he said.
“In Guantanamo, the Joint Task Force responsible for detaining the individuals HAS a motto: ‘Honor Bound to Defend Freedom.’”
While the government characterizes the military commissions as being about full and fair trials, and holding people responsible for violating the law of war, Gunn noted that for him, legitimacy is the main issue at stake.
“Can we conduct these trials in a manner that is acceptable to the United States, to our system of values, as well as to the rest of the world? We say that [being America] means that we’re about the rule of law. So the question becomes, can we hold true to those values in this mode, in this age?”
Gunn put the task before him and his team in a historical context going back to John Adams’ successful defense of a British officer after the Boston Massacre of 1770.
“In his memoirs, [Adams] noted that it was vitally important for him to take that case because if they had gotten a conviction based on the evidence that was present at that time, that would have been a greater detriment to the cause of liberty than virtually anything else.”
Faced with skepticism from students in attendance as to whether military commissions could ever result in fair trials, Gunn declined to “spin” the system.
“I’d prefer that you all come to your own conclusions as to whether we can have full and fair proceedings.” Keeping the commissions open to the maximum extent possible will be key, he said, adding that the presiding officer has the power to exclude the defendants and their civilian attorneys when classified information is introduced.
Noting that his team of defense lawyers has already demonstrated commitment to a thorough defense through the filing of an amicus brief to the Supreme Court on behalf of the detainees, Gunn referred to the task as a “blessing.”
“In Guantanamo, the Joint Task Force responsible for detaining the individuals has a motto: ‘Honor Bound to Defend Freedom.’ I believe that is exactly what my team is called on to do. We are honor bound to defend freedom.”