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While the world debates U.S. plans to exact an extraordinary brand of justice on accused terrorists, the head of the Pentagon’s defense team for military commissions says he has come to terms with his role in the system. Air Force Col. Will Gunn, a veteran military lawyer who once supervised Air Force defense attorneys across an 11-state region, says he thought carefully before accepting his post. He concluded that the lawyers working under him would be able to mount a zealous defense on behalf of detainees brought to trial. “If I were designing this system, I feel fairly confident there are aspects I would have changed,” reflects 44-year-old Gunn. “Understanding the responsibilities I have before me, I have a couple of choices. I can fulfill them, advocate for change, or resign. At this point, I am not ready to resign.” Now, the criminal defense bar as a whole must grapple with a very similar question: Should lawyers volunteer to represent those facing trial before commissions, or register objection to the system by refusing to participate? As the Pentagon prepares potential charges against six individuals, defense lawyers remain passionately split on the subject. Retired Marine Corps lawyer Grant Lattin, chairman of the Military Law Committee of the Bar Association of the District of Columbia, is one of about 10 attorneys who have applied to join a pool of civilian defense counsel. “Regardless of how bad we think the system is, I think we have a duty to get involved,” says Lattin, a solo practitioner in Woodbridge, Va., who serves on the advisory board of the National Institute of Military Justice. “Let’s face it — if nobody participates, these people are going to be prosecuted without any input from the civilian defense bar.” On July 11, the National Institute of Military Justice formally urged civilian lawyers to consider stepping in. On the opposite end of the spectrum, the National Association of Criminal Defense Lawyers all but declared a boycott of the tribunals earlier this month. “In view of the extraordinary restrictions on counsel . . . we cannot advise any of our members to act as civilian counsel,” NACDL President Lawrence Goldman wrote in the July issue of The Champion, the NACDL’s magazine. “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.” Goldman says the NACDL board decided it would not encourage lawyers to participate in military commissions because of its fears that the Pentagon rules could force lawyers to act unethically. But, he adds, the group is not asking its members to stay away, though it may take that step in the future. “I never like to tell lawyers what they cannot do in terms of taking cases,” Goldman says, “but part of me thinks criminal defense lawyers should just refuse to participate in this. It’s a sham.” Robert Precht, assistant dean of public service at the University of Michigan Law School, calls the NACDL position “terribly misguided.” “I cannot think of a more critical, more urgent call for criminal defense lawyers to step up and defend the ultimate underdogs,” says Precht, a former federal public defender in the Southern District of New York. Precht represented Mohammad Salameh, who was convicted and sentenced to 240 years in prison for his part in the 1993 World Trade Center bombing. Precht adds, “I think it would be tragic if criminal defense lawyers simply throw up their hands.” STARTING POINT The Pentagon plan to try some detainees held at Guantanamo Bay, Cuba, before military commissions stems from a November 2001 military order signed by President George W. Bush in the aftermath of the Sept. 11 terrorist attacks. The order allows the United States to try suspected terrorists who are not U.S. citizens before tribunals of three to seven military officers. Bush’s July 3 designation of six individuals as subject to his order sets in motion a process that may ultimately lead to a military commission trial. The next step would be for Deputy Defense Secretary Paul Wolfowitz to bring charges against the suspects and name commission members. The Pentagon has refused to publicly name the six detainees. But lawyers, family members, and home country officials have identified three so far: British citizens Moazzam Begg, 35, and Feroz Abbasi, 23, as well as Australian citizen David Hicks, 27. Foreign press reports have identified the native countries of the remaining three as Pakistan, Sudan, and Yemen. Most of the more than 600 Guantanamo detainees were rounded up during the war in Afghanistan that toppled the Taliban and rooted out many alleged al Qaeda terrorists or sympathizers. Lawyers with the Center for Constitutional Rights in New York, who represent Hicks in habeas corpus proceedings, say they are considering what steps to take next. Staff attorney Steven Watt says the group has also been contacted by British attorneys for Begg and Abbasi. “We’re contemplating the possibility of getting one of our team of lawyers down there,” says Watt. “At the same time, the conditions defense attorneys must work under are highly problematic.” According to Defense Department regulations, defendants charged before military commissions will be provided military defense counsel and can obtain civilian representation if it is provided at no cost to the U.S. government. To be eligible, civilian lawyers must be U.S. citizens, in good standing with the bar, and able to obtain a security clearance. The costs of procuring the security clearance — roughly $300 for a basic clearance and $2,600 for a top-secret clearance — must be covered by the attorney. In addition, civilian defense counsel must sign an affidavit agreeing to abide by rules that permit attorney-client conversations to be monitored; require lawyers to disclose certain client confidences; allow lawyers to be excluded from proceedings; and prohibit them from making public statements without Pentagon approval. Many defense lawyers have blasted the restrictions as unworkable. Pentagon attorney Maj. John Smith, spokesman for the military commissions, says the rules were fully vetted by ethics guru Geoffrey Hazard, a law professor at the University of Pennsylvania. Hazard declined to comment. Smith also notes that a new version of the affidavit, released last week, relaxes some previous restrictions on the travel and communications of civilian lawyers. For instance, the new version eliminates a requirement that civilian lawyers perform all case work at the site of military commissions. ‘FULL AND FAIR TRIAL’ For his part, Gunn says he expects military lawyers to aggressively defend those charged before commissions and, if necessary, to fight the system from within. “I invite civilian defense counsel to come participate,” Gunn says. “But regardless of whether we have civilian counsel participating in every case, in some cases, or in no cases, I’m convinced we can provide vigorous representation for each and every accused.” Gunn, a Harvard Law School graduate and former White House Fellow from Fort Lauderdale, Fla., most recently served as personal adviser to Air Force Judge Advocate General Thomas Fiscus. He learned he was being considered for the position of chief defense counsel in May 2002 while traveling in Buenos Aires. After a series of interviews with Defense Department officials, Gunn took the job in February 2003. His role, he concedes, is more administrator than advocate. As head of the defense team, Gunn cannot represent detainees and is not bound by attorney-client confidentiality. Rather, his duties include assigning military defense attorneys and administering the pool of civilian attorneys. He has two attorneys in his office, three more on the way, and is reviewing applications from about 10 civilian lawyers. “Under the rules, the commission’s duty first and foremost is to provide a full and fair trial,” Gunn says. “That is something I see defense counsel pushing to ensure is the actual result in each and every commission.” He adds, “While the rules certainly place restrictions on defense counsel, I’m convinced defense counsel can still provide zealous representation.” Still, concerns persist within the bar. For instance, the D.C. Rules of Professional Conduct allow members of the D.C. Bar to reveal client confidences only in very limited circumstances, including the prevention of criminal conduct likely to result in substantial bodily harm. The Pentagon rules demand the affirmative disclosure of information in order to prevent acts likely to impair national security. “When you tell a lawyer you can’t be present when certain evidence is discussed, your communications with your client may be monitored, and you must report things your client says to the government, that certainly raises ethical questions,” says Gary Solis, a retired Marine judge advocate and professor at Georgetown University Law Center. What’s more, Solis notes, civilian lawyers must essentially abandon their practices by remaining at Guantanamo for the duration of the trial and not seeking to delay proceedings for other clients or personal business. “Most lawyers just can’t afford to do it,” he says. Not surprisingly, given the philosophical and practical hurdles, few lawyers have signed on for the job. “I don’t know one single criminal defense attorney interested in getting involved,” says Barry Boss, a partner at D.C.’s Asbill, Moffitt & Boss and a former assistant federal public defender. “You wonder whether you’re doing more harm than good when you insert yourself into a system you don’t agree with and find morally repugnant,” Boss adds. “We all have our breaking point where a system is so fundamentally flawed, we can’t justify participating in it.” Even Lattin, the Virginia solo who has volunteered, says financial considerations may ultimately prevent him from taking a client. “This is a very difficult economic circumstance for any private practitioner to get involved in unless there is a group or some other organization that can financially sustain that attorney,” Lattin says. “I’m a solo practitioner. I’ve got a family to feed. I can’t just walk away from my law practice.” Ultimately, however, military commissions will proceed with or without participation from the civilian defense bar. And to some, the latter possibility is so intolerable it overshadows all other concerns. Duke University law professor Walter Cox III, former chief judge of the Court of Appeals for the Armed Forces, says a boycott by the private bar would be akin to doctors refusing to perform lifesaving surgery because of sub-standard hospital conditions. “From my experience, having civilian attorneys involved is good for the system,” Cox says. “If they think the system is wrong, go prove it’s wrong.”

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