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Military Tribunal Lawyers Named

The Pentagon today released the names of the chief prosecutor and defense lawyer for the upcoming Military Terrorism Tribunals.

Army Col. Frederic Borch III has been named acting chief prosecutor and Air Force Col. Will Gunn has been designated as acting chief defense counsel, Pentagon officials said. Borch and Gunn were scheduled to brief reporters later on Thursday.

On May 2, the Pentagon published the rules that would apply in military tribunal trials.

These have drawn harsh criticism from some legal experts who argue that the rules were crafted to make winning convictions and getting the death penalty as easy as possible.

They point to a series of restrictions placed on defense lawyers -- including monitoring of all conversations with defendants -- and a lack of guidelines for what charges could bring the death penalty. ``To some extent, these things are not set up to give a fair trial, but set up to compel guilty pleas out of people,'' said Michael Ratner, president of the New York-based Center for Constitutional Rights.

We have major problems with the process. The rules provide that those being tried have a right to have a civilian lawyer represent them along with the provided military lawyer. But there are a host of unreasonable conditions attached.

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

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