Defense Lawyers Balking At Participating in Military Tribunals

The New York Times has an excellent article outlining the hesitancy of civilian defense lawyers to participate in military tribunal proceedings .

As Lawrence Goldman, President of the National Association of Criminal Defense Lawyers (NACDL) writes in this month's Champion magazine:

"In view of the extraordinary restrictions on counsel, however, with considerable regret, we cannot advise any of our members to act as civilian counsel at Guantánamo," he wrote. "The rules regulating counsel's behavior are just too restrictive to give us any confidence that counsel will be able to act zealously and professionally."

Among the rules defense lawyers object to:

  • Conversations with our clients are subject to being monitored
  • Lawyers have to pay for their own transportation to and from Guantanamo, represent the accused for free, and pay for their own security clearances, estimates of which run about $2,800.00. Unlike the federal court system, the Government is not offering compensation at reduced rates, and the trials could take months. Who can afford it?
  • Even with a security clearance, defense will not be entitled to see all the documents. Only the military counsel may see everything.

The Government has made two welcome changes in the rules to encourage civilian counsel to particpate. Lawyers will be allowed to confer with colleagues on their cases, and it will not be required that all legal work be done at Guantanamo.

Here's more on the rules and why lawyers are afraid the tribunals will be sham proceedings to which they should not lend legitimacy. And Calpundit reprints a chart from the new issue of the Economist (subscription only) showing the difference between the military tribunals, U.S. Criminal trials and court- martial proceedings (which use the Code of Military Justice). His comment:

This is disgraceful. Our children are going to look back on this the same way we look back on Japanese internment camps and McCarthy-era loyalty oaths.

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