TRIBUNALS II

Tomorrow’s NYT has another story on this topic: Rules for Terror Tribunals May Deter Some Defense Lawyers.

Anyone charged before a military commission would be provided a lawyer from the military, but the complaints are about the conditions under which they could hire an additional civilian lawyer.

The restrictions that have troubled Mr. Goldman, as well as officials of the American Bar Association, include a requirement that defense lawyers acknowledge that their conversations with defendants may be monitored by the military. The Pentagon says none of the information collected that way may be used in the prosecution.

The Pentagon has been sensitive to some of the criticisms and has modified two regulations in recent days. Under the original regulations, defense lawyers would have been required to do all their trial work at Guantánamo, the remote naval base controlled by the United States, on the southeastern tip of Cuba. Lawyers would also have been restricted as to whom they could consult on their strategies. The modifications appear to address those concerns.

Whit Cobb Jr., the deputy general counsel at the Defense Department, said in an interview that the restraints were largely “driven by the ongoing war on terrorism and the need to protect intelligence.”

A rather sticky dilemma, to be sure.

Other issues that have concerned lawyers include a requirement that lawyers inform military officials of anything they learn that could signal a future crime and that they would have to pay to obtain a security clearance, which could cost thousands of dollars. In addition, the defense would have to tell the prosecution a week before the trial about all of its evidence, a stark departure from a civilian trial.

The first requirement strikes me as reasonable but not the second. Asking civilian lawyers, presumably working for clients with no money, to fork over their own money for a clearance is rather silly. It’s just $2800, not the “thousands” quoted, but still a lot under the circumstances.

FILED UNDER: Law and the Courts
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.