The private lawyer must pay for his or her own security clearance, which undoubtedly will cost $5,000 or more and take months to complete. It is doubtful these detainees have the money for private counsel, and there is no provision for appointed counsel. Yet under the rules, the defense counsel must state that the military case will be their primary case for its duration. Are lawyers supposed to risk bankruptcy to participate in the process?

Even with a security clearance, private lawyers won't be allowed to see highly classified information--only the military lawyer gets access to all documents. Despite the fact that these future defendants are foreigners, any private counsel that seeks to represent them must be an American citizen.

From the Fulton County Daily Report, May 20, 2003, Lawyers Blast Rules for Terrorist Suspects Trials (sorry, we can't find a free version):

Attorney-client communications will be monitored:

To be eligible to participate, civilian attorneys must swear an oath that includes the following: "I understand that my communications with my client, even if traditionally covered by the attorney-client privilege, may be subject to monitoring or review by government officials using any available means, for security and intelligence purposes."

And this: "I will not discuss or otherwise communicate or share documents or information about the case with anyone except persons who have been designated as members of the defense team."

"That's a flat-out gag order," said Miami attorney Neal R. Sonnett, a former president of the National Association of Criminal Defense Lawyers who chairs the American Bar Association's task force on the treatment of enemy combatants.

Then there are the working conditions:

The new operating rules also impose problematic restrictions on how and where civilian defense lawyers can do their job. All work in defense of a case, "including electronic or other research," must be done at the site of the trial. Also, the prosecution is not required to give the defense access to case evidence or the names and contact information of witnesses until a week before a trial is scheduled to begin.

In short, it seems to us and many others that these rules are designed to thwart the accused's right to be represented by private counsel and to discourage private counsel from accepting such representation