Air Date: Sunday, June 05, 2005
Time Slot: 7:00 PM-8:00 PM EST on CBS
Episode Title: "N/A"
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Prosecutor Says Trial Rules are Fair to Defendants and Necessary to Protect Security

Military lawyers for Guantanamo Bay terror detainees say it will be impossible for them to defend their clients because the military commission set up to try them imposes unfair rules � rules meant to protect U.S. national security. Ed Bradley�s report will be broadcast on 60 MINUTES Sunday, June 5 (7:00-8:00 PM, ET/PT) on the CBS Television Network.

Some of the evidence presented against terror detainees probably will be classified and the rules in the military commission trials may preclude defendants from seeing such material in the interest of national security. �Well, [that rule] makes it impossible [to defend my client],� says Navy Lt. Cmdr. Charles Swift, who is defending Salim Ahmed Hamdan, a man who has admitted being a driver for Osama bin Laden. Information from other terror suspects or foreign intelligence sources likely would be classified. �How you do cross-examination is you look to your client and say, �Did you ever meet that man? Does he like you? Does he dislike you?� What [the rules] do here is they make a mockery of what defending a man is,� says Swift.

Just as the commission�s trials began last November, they were stopped by a federal judge because of a lawsuit filed by Swift claiming the procedures are unlawful. The government is fighting that suit to allow the trials to continue. Says Brad Berenson, a former White House lawyer who helped draft the president�s order creating the commissions, �I think that the courts at this point are interfering far too much in the conduct of war, with consequences that could be very, very dangerous for the country.�

Commission Prosecutor Lt. Col. John Einwechter says withholding evidence from defendants � generally not permissible in a U.S. court � is necessary in these wartime cases. �There will be circumstances in which classified evidence will be presented that the accused will not be given access to. Remember, al Qaeda continues out there to plot�terrorist attacks against our country,� he tells Bradley. �It is essential that we strike a balance in a way that preserves our national security while providing a fair trial,� says Einwechter.

Any evidence the commission deems relevant will be allowed, including un-sworn statements, statements obtained under duress and hearsay evidence � items all generally inadmissible in a U.S. court of law. Air Force Lt. Col. Sharon Shaffer, who represents a Sudanese accountant accused of being an al-Qaeda member, says those are precisely the rules that guarantee a fair trial. �Rules and procedures apply, rights apply and those standards can�t be ignored,� she tells Bradley. �[Allowing such evidence] leaves a huge hole as to what types of evidence will come in, whether or not it was taken�via some sort of coercion�even torture.�

Fair or unfair, even if detainees are acquitted, they will not go free if they are considered foreign combatants deemed likely to renew their fight against the U.S., which makes Swift wonder what the point is. �If Salim wins, does he get anything? No, he goes back to the same cell, so it seems awfully a lot for show, doesn�t it?

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