“… For the moment at least, your guilt is taken as proven.”

“But I’m not guilty,” said K. “It’s a mistake. How can a person be guilty at all? Surely we are all human beings here, one like the other.”

“That is right,” said the priest, “but that is the way the guilty are wont to talk.”

—Franz Kafka, The Trial

You may have already heard that two senior prosecutors in the Guantánamo war crimes trials requested transfers after they complained that the process was “rigged” and pursuing convictions of low-level defendants. Now it turns out that a third military prosecutor shared their concerns and also asked to be redeployed. Captain Carrie Wolf left the Office of Military Commissions last year because of similar concerns about the unfairness of the trials, according to a report by the Australian Broadcasting Corporation yesterday. (David Hicks, an Australian captured in Afghanistan, is one of the four men at Guantánamo being tried for war crimes, and the Australian media is following the case closely.)

Emails from Major Robert Preston, a highly decorated judge advocate, and Captain John Carr, now a major working on the legal staff of General John Abizaid, show that the two did not consider the proceedings against the Guantánamo four to be fair or worthy of the extraordinary measures being taken. “I lie awake worrying about this every night … After all, writing a motion saying that the process will be full and fair when you don’t really believe it is kind of hard, particularly when you call yourself an officer and lawyer,” Preston wrote in an email to a senior officer in the prosecutor’s office. Pressing ahead with such “marginal” cases would amount to “a fraud on the American people,” he said. (For more excerpts from the emails, click here.)

In the second email, Carr reminded Colonel Frederick L. Borch that the chief prosecutor himself had guaranteed convictions. “You have repeatedly said to the office that the military panel will be handpicked and will not acquit these detainees and that we only need to worry about building a record for the review panel,” he wrote. Carr also complained of withheld and missing evidence that could be of use to the defense.

Borsch responded to the discontented prosecutors in an email that affirmed his great respect and admiration for them — then called their charges “monstrous lies.” (Well, as they say when grading papers, always start out with a positive.) A two-month military investigation found no evidence of criminal misconduct, ethical violations, or “tampered with, falsified or hidden” evidence.

It may just be me, but I find it a little worrisome when the prosecution starts complaining about having it too easy. I’m also skeptical any time that a branch of government decides to investigate itself — and, shockingly, finds no wrongdoing. (Anyone heard of Watergate?) Our friends overseas aren’t so easily persuaded of the U.S. government’s good intentions, either. “What farce,” says Michael Costello of The Australian. “As if [the Defense Department’s inspector general] could come to any other conclusion. If this is the standard we are to apply, we should ask Hicks to investigate the allegations against himself. He will no doubt say they were all the result of a misunderstanding and declare himself innocent.”

It seems like a no-brainer: If the U.S. government wants to preserve its credibility overseas — much less uphold justice, the American Way, and all that jazz — shouldn’t it give full and fair trials to those it detains/imprisons/involuntarily vacations in sunny Guantánamo? If the cases against these men are so ironclad, why the fear of fairness? As things are going now, the government seems like it’s headed straight for the secretive, bureaucratic lunacy of The Trial, Franz Kafka’s novel of a legal system run amok. There, too, you have prosecutors with no serious counterweight, evidence out of the reach of defendants, and panels of judges convinced of the defendant’s guilt before the proceedings have even begun. Not to mention defendants waiting in uncertainty for months or years, not knowing when they will be tried or even what crimes they are charged with — on that score, the Guantánamo four are to be envied.

In the bubble of these secretive, one-sided military tribunals, I worry that the well-intentioned men and women pursuing justice will find themselves digging a grave for it. This passage from The Trial is worth pondering:

At this point the disadvantage of a judiciary system which, from the very beginning, sanctioned secrecy made itself felt. The officials were out of touch with the public, they were well enough equipped to deal with the ordinary run-of-the-mill type of case, for this kind of case would proceed almost under its own momentum and only needed an occasional push. But when faced with quite simple cases or especially difficult ones, they were often at a total loss, because they were continuously, day and night, hamstrung by their legal system and lacked a proper feeling for human relations. And in such cases that feeling was all but indispensable.

Victor Tan Chen Victor Tan Chen is In The Fray's editor in chief and the author of Cut Loose: Jobless and Hopeless in an Unfair Economy. Site: victortanchen.com | Facebook | Twitter: @victortanchen