Just last month, John G. Roberts joined two other federal appellate judges in a decision that cleared the way for the Bush administration to use military tribunals to try detainees at Guantánamo Bay. Here's a question an enterprising senator might pose to Roberts in his upcoming Supreme Court confirmation hearings: If he knew then what we're learning today, would he still have subjected the detainees to the military tribunal process?
As the Wall Street Journal is reporting today, two Air Force lawyers quit their jobs on the Guantánamo prosecution team last year in protest over trials before military tribunals that they believe were rigged against the detainees. Read that last bit again: The lawyers quit their jobs on the prosecution team. These weren't defense lawyers, from whom one would expect to hear -- and, in fact, from whom one has heard -- complaints that the military tribunal process is unfair. Maj. John Carr and Maj. Robert Preston were Air Force prosecutors, and they quit their jobs on the prosecution team because even they thought that the tribunal process amounted to a kangaroo court.
In e-mail messages provided to the Journal and to the New York Times, Carr and Preston accused their superiors of rigging the tribunals against the detainees and charged their fellow prosecutors with ignoring allegations of torture, failing to protect evidence that could have exonerated some detainees and withholding information from their superiors.
In one March 2004 e-mail message, Carr said that Col. Frederick L. Borch, then the chief Guantánamo prosecutor, had "repeatedly" told the prosecutors who worked for him "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" and academicians who would study the cases later. Preston said in another e-mail message that moving forward with the tribunals would be "a severe threat to the reputation of the military justice system and even a fraud on the American people." Preston wrote: "I lie awake worrying about this every night ... writing a motion saying that the process will be full and fair when you don't really believe it will be is kind of hard -- particularly when you want to call yourself an officer and a lawyer."
What if you want to call yourself a Supreme Court justice?