Brigadier General John G. Baker, USMC, the chief defense counsel at the U.S. military commissions, has given a major talk at Georgetown University. It can be found here, on the Lawfare site. Excerpt:
If the U.S. Government still intends to use Nuremberg as its guide, they would be wise to listen to the chief prosecutor at Nuremberg, Justice Robert Jackson, who recognized the danger of powerful nations unilaterally dispensing justice onto a purported enemy.
Justice Jackson said in his opening argument at Nuremberg: “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.”
Instead of respecting the Constitution and ensuring equal protection under the law, the U.S. Government is choosing to drink from a poisoned chalice.
If our government wants the most important criminal cases in American history to be tried by military commission, it is essential that the proceedings live up to the highest standards of American justice. They have not. Instead, they leave behind a legacy of uncertainty, government misconduct, and torture. This is a gross injustice being done to the individuals charged in the system, but it is also more than that—it is, as Justice Jackson recognized, a matter of national security and integrity as well.