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Civilian Lawyers Find Military Tribunal Rules Too Restrictive

Here's more on why civilian lawyers are reluctant to participate in the Administration's planned military tribunals.

The military is detaining nearly 700 people with alleged ties to the Taliban, al-Qaida or other terrorist groups, primarily at the Guantanamo Bay Naval Base in Cuba.

Some lawyers are concluding that it may not be practical–or even ethical–for them to represent defendants before the military commissions because of the limitations imposed by the rules. "These restrictions in essence eviscerate the right of defendants to civilian counsel," says David P. Sheldon, a Washington, D.C., lawyer who has been practicing military law for more than a decade.

Having only limited participation by civilian defense lawyers could be bad for the overall process, as well as specific defendants, says Neal R. Sonnett of Miami, who chairs the ABA Task Force on Treatment of Enemy Combatants. "The inclusion of competent civilian defense counsel would go a long way to helping add credibility to these courts," he says.

What are these restrictions? In a nutshell:

The rules require, for instance, that civilian attorneys obtain a security clearance that would allow them to view documents classified as secret before they may be added to the pool of eligible civilian defense counsel. Attorneys also must consent to allow the government to monitor, in the interest of national security, all communications with defendants. Moreover, lawyers may be subject to sanctions for failing to reveal information if they reasonably believe it poses a significant threat to national security.

The rules also require civilian defense lawyers to do much of their case preparation and research at the location of the trials–presumably Guantanamo–and prohibit them from discussing the case, sharing documents or consulting with anyone except the military defense lawyers assigned to the case.

Moreover, the rules require both the defendant and civilian counsel to leave the court when proceedings of a military commission are closed for national security reasons. Only the military defense counsel will be allowed to participate in those proceedings, although he or she will be prohibited from saying anything to the defendant or civilian counsel about what was discussed.

These rules are unfair and prevent meaningful and zealous representation by counsel. We don't think it's our business to tell other lawyers what to do, but we can say we wouldn't represent someone under these restrictions.

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