David Remes on CCR's Statement

Responding to my earlier post objecting to CCR's statement on the Ghaliani verdict, David Remes--one of the key Guantanamo habeas lawyers--wrote me a very interesting letter. It is interesting, in my view, less for its defense of CCR's statement than for its somewhat backhanded defense of military commissions relative to federal courts as a venue for terrorist prosecutions. On this point, David's statement brings out a question I have wondered about for some time: From the pure defense lawyering perspective--leaving aside optics and politics and, for that matter, principle--should a lawyer prefer a federal court or a military commission as a venue in which to defend a client? I would be very interested to hear from other defense lawyers who have compared the two systems. I tend to think, as David's note suggests, that the issue is much more complicated than the public debate allows. Here's David's note in its entirety:

A few thoughts on your comments on CCR's statement on the Ghailani verdict. 1. In questioning the ability of Muslims to receive a truly fair trial post-9/11, CCR was obviously making a general point about anti-Muslim bias in American judicial tribunals. It's a sweeping claim, to be sure, but I suspect many Muslims would agree with CCR. The Ghailani verdict, standing alone, does not refute it. Let's discuss the point and not dismiss it out of hand. 2. CCR is plainly right that trials in military commissions have serious flaws. Yet we may never see those flaws demonstrated. As in federal courts, plea deals in military commissions--such as those reached in Hicks, Qosi, and Khadr--may prove to be the norm. On the other hand, the most serious flaw of federal courts in criminal proceedings (in my untutored view) is demonstrated every day: the draconian sentences meted out under the influence of the Sentencing Guidelines. I'm sure seasoned criminal defense lawyers could identify many other serious flaws. 3. I do disagree with CCR's assertion that "federal criminal trials are far superior to military commissions for the simple yet fundamental reason that they prohibit evidence obtained by torture." The commissions have not fallen short in this regard. The government's military commission case against Jawad collapsed because the military judge threw out his confessions as having been procured by torture. The Convening Authority barred al-Qahtani's prosecution because the U.S. had tortured him. And in Khadr's case, the government's need to rely on evidence obtained by torture undoubtedly played a role in its decision to settle the case on terms that will send the child soldier home in a year. I doubt Khadr could have gotten such a merciful disposition of his case in federal court. 4. If it seems, as you say, that "CCR will oppose any governmental response to terrorism," that's so only because so many of the Bush and Obama responses have been unconstitutional, as are some other responses now on the table. Finally, CCR is justifiably proud of its role in the Guantanamo litigation. Indeed, the Supreme Court sided with CCR in all four historic Guantanamo cases. CCR deserves credit for its courageous work, not disdain.