The Clipboard: Who'll defend the detainees?

From an article¹:

Retired officers such as Colonel Lattin, who are familiar with military law, are struggling to decide whether they want to participate in cases that promise to be historic but use rules they view as heavily skewed toward the government.

Detainees tried before military commissions will receive fewer legal protections than American service members tried before courts martial.

Even though prosecutors can use a broader array of evidence than permitted in a civilian court or a military court martial, civilian defense lawyers will not be allowed to see some classified evidence. They may also not be allowed to confer with colleagues not assigned to the case or have private conversations with their clients.
Appeals will go to a Pentagon-appointed review panel, the secretary of Defense, and the president, but will not be reviewed by civilian courts.

What's more, the defendants, many of whom are unlikely to trust American lawyers, are barred from hiring non-US citizens. They can select their own military or civilian counsel - but they have to pay for it themselves.

Those drawbacks leave many of the former officers most familiar with military justice unwilling to get involved. "I wouldn't touch this with a 10-foot pole," says one retired senior military lawyer, who asked to remain anonymous. "Why would a civilian defense counsel want to get involved, knowing that he or she would be operating with one hand tied?" (link)

As Jim Henley says: The question is not "Do terrorists deserve the same rights as ordinary criminals?" The question is "Are terrorist suspects terrorists?" That's exactly congruent with the question "Are criminal suspects criminals?" We have centuries of experience on what can go wrong trying to answer that question, and developed an elaborate system of rights and procedures to minimize the potential for disaster - depriving the innocent of the liberty, property and even lives.. One of the foundations of the American system is the principle of "innocent until proven guilty". So why the hell is the American government doing this?

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Complete text of the article, Who'll defend the detainees?, by Seth Stern

As a career military lawyer, retired Marine Corps Col. Grant Lattin defended and prosecuted soldiers accused of rape or desertion.

But not much in his two decades of military service has prepared him for the next possible assignment: defending illegal combatants detained by the US at the Guantanamo Bay Naval Base in Cuba.

Last month, the Pentagon invited civilian lawyers to help represent the 680 detainees, with alleged ties to the Taliban or Al Qaeda. Specially created military commissions will try many of them for everything from spying to war crimes.

Retired officers such as Colonel Lattin, who are familiar with military law, are struggling to decide whether they want to participate in cases that promise to be historic but use rules they view as heavily skewed toward the government.

Detainees tried before military commissions will receive fewer legal protections than American service members tried before courts martial.

Even though prosecutors can use a broader array of evidence than permitted in a civilian court or a military court martial, civilian defense lawyers will not be allowed to see some classified evidence. They may also not be allowed to confer with colleagues not assigned to the case or have private conversations with their clients.

Appeals will go to a Pentagon-appointed review panel, the secretary of Defense, and the president, but will not be reviewed by civilian courts.

What's more, the defendants, many of whom are unlikely to trust American lawyers, are barred from hiring non-US citizens. They can select their own military or civilian counsel - but they have to pay for it themselves.

Those drawbacks leave many of the former officers most familiar with military justice unwilling to get involved. "I wouldn't touch this with a 10-foot pole," says one retired senior military lawyer, who asked to remain anonymous. "Why would a civilian defense counsel want to get involved, knowing that he or she would be operating with one hand tied?"

The Pentagon has released few details about how many Guantanamo detainees might be prosecuted.

The commission's top military lawyers say every detainee tried before a commission will get a full and fair trial. At the same time, the Pentagon is rethinking some rules laid out in the military commission instructions that would make it difficult for defense lawyers to research cases outside Cuba or consult with lawyers not involved in the case, says Air Force Maj. John Smith, an attorney with the Office of Military Commissions.

"We're going to be able to provide a zealous defense for all detainees brought to trial," adds Col. Will Gunn, head of the defenders' office for Guantanamo detainees.

Still, Lattin says civilians such as himself need to get involved, too. "Though it's not the rules I would have written, I think people ought to have the opportunity to choose civilian defense," he says. "There may be some people there who have done virtually nothing, and it may be that they're innocent."

So last month, Lattin sat in his home office in suburban Washington debating whether to submit a cover letter, proof of citizenship, and a waiver that would allow the government to investigate his past.

If he decides to represent any detainees, Lattin says he can't afford to do it free of charge. And since the government isn't paying those who sign up, any defendant will still have to pay Lattin's hourly $150 fee or a flat rate.

Despite those limitations, the Pentagon says several lawyers have submitted applications. Some may take cases on a pro bono basis or be underwritten by foundations. Or families of detainees may hire attorneys on their own.

reference=http://www.csmonitor.com/2003/0619/p16s01-usju.html