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Military Commission Chief Prosecutor, Defense Counsel Introduced

By Sgt. 1st Class Doug Sample
American Forces Press Service

WASHINGTON, May 23, 2003 – The Pentagon introduced the two military lawyers May 22 who will prosecute and defend criminals charged with violating the laws of war and terrorist activities.

During a Pentagon briefing, Army Col. Frederic Borch, acting chief prosecutor, and Air Force Col. Will Gunn, acting chief defense counsel, discussed how the commission process would work.

Borch said his office will prosecute those individuals in violation of the laws of war -- in this case terrorism. "That's the principal reason for military commissions, and historically this is what we've always done as Americans," he said. He noted that his job as acting chief prosecutor would be to look at terrorism and detainees being held at Naval Station Guantanamo Bay, Cuba.

"You probably know that after World War II we had hundreds of military commissions hearing cases involving war crimes committed during World War II. But again it's restricted only to violations, really, of the laws of war, war crimes, and again, in the context here, has to be terror-related," he said.

"We're talking about terrorism here and not just any particular war crime or violation of the law of war," he continued, noting that civilian courts deal with civilian criminal offenses. "This is entirely different here. These are offenses that occur in the context of armed conflict, which I think also should explain to you why it's a military commission and not some other kind of commission."

Borch will be in charge of organizing all the prosecution during trials and providing legal advice for the prosecution. His office will consist of uniformed military prosecutors, which is a requirement of the commission, from each of the services, he said.

Borch said that when and if individuals are brought to trial, the process will be carried out "to do everything to guarantee a full and fair trial. And I'm like every other American: Everyone who's at a prosecution should get a fair trial. And I'm convinced that's exactly what's going to happen at the military commission," Borch said.

He also addressed how the government would select cases. "The president makes the decision as to whether or not anyone is subject to the jurisdiction of the military commission," he added.

"President Bush hasn't done that yet. And until such time, I really can't tell you how we're going to select cases. All I can tell you is that we're getting ready as prosecutors for the appropriate time when the president makes the decision."

On the other hand, Gunn said that he will ensure that all detainees, if brought to trial before the commission, will "receive zealous representation by defense counsel."

Unlike the prosecution, civilian, as well as military, counsel can represent the accused. If detainees, for example, aren't satisfied with military defense counsel, Gunn said, they can request either other military counsel or U.S.-citizen civilian counsel as long as there's no expense to the U.S. government.

Gunn said he hadn't received any applications from civilian defense counsel to represent detainees, but anticipates that will change. He added that civilian defense counselors wanting to join the defense pool must agree they're aware of the rules and will abide within certain parameters.

Gunn said in order for the government to convict anyone, it must maintain the burden of proof.

"And that burden is that they're going to have to prove that an individual is in fact guilty beyond a reasonable doubt," he noted.

Gunn said he "guarantees" that defense counsel being brought on to his team will do "everything within rules "to challenge the government's case."

"We don't have a group of people that are going to just roll over and accepts whatever is being presented," he emphasized.

Gunn pointed out that he didn't seek out the defense counsel position. "When I was contacted about taking on this position, I immediately recognized that the glamour position here was that of chief prosecutor, the opportunity to be America's hero," he said.

"But as I reflected on it, it occurred to me that there is a valuable role to be played by defense counsel, a critical role to be played by defense counsel, again, not just for the individual, but also for the nation as a whole."

He said he decided to accept the position "because of the opportunity to serve."

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