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Guantanamo Injustice

From an editorial in today's New York Times, Injustice in Guantánamo:

The Bush administration has already denied each of the Guantánamo detainees one basic right guaranteed in the civilian justice system: a speedy trial. Now it appears determined to deny many more. Before these prosecutions go any further, the administration should overhaul its procedures until it has a system capable of exonerating the innocent, and of showing a skeptical world that those who are convicted are in fact guilty.

On August 2, 2003, the Board of Directors of the National Association of Criminal Defense Lawyers (NACDL) passed a resolution regarding lawyers' participation in the tribunals. We just received the full text today:

WHEREBY a Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” 66 F.R. 57833 (Nov. 16, 2001), and its implementing instructions issued April 30, 2003, defined the proceedings for representing the accused in Military Commissions at Guantanamo Bay;

WHEREBY the Military Commission Instructions impose severe limitations on defense counsel and deny due process and attorney-client confidentiality and privilege;

WHEREBY such limitations make it impossible for counsel to provide adequate or ethical representation, and representation before such a commission would make it necessary for a criminal defense attorney to contract away his or her client’s rights, including the right to zealous advocacy;

THEREFORE BE IT RESOLVED that NACDL deems it unethical for a criminal defense lawyer to represent a person accused before these military commissions;

THEREFORE BE IT FURTHER RESOLVED that, conversely, NACDL will not condemn criminal defense lawyers who feel obligated and undertake to represent persons accused before military commissions, as long as they raise every conceivable good faith argument concerning the jurisdiction of the military commission, the legality of denial of application of the Uniform Code of Military Justice, international treaties, and due process of law, including resort to the civilian courts of the United States to determine whether the proceedings are constitutional.

Also newly available is the NACDL Ethics opinion written by John Wesley Hall, addressing the question:

Given the restrictions placed on civilian defense counsel, what are a criminal defense attorney’s duties to the client before a Military Commission at Guantanamo Bay under Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” 66 F.R. 57833 (Nov. 16, 2001), and its implementing instructions issued April 30, 2003?

The American Bar Association at its annual meeting this month also passed a resolution critical of the Administration's tribunal plans. While it did not address the ethical issue of civilian lawyer participation, it sharply criticized the current proprosed procedures and recommended changes. You can read a summary of the proposed changes here.

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