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A few weeks ago, the first “combatant status review tribunals” began at the Guant�namo Bay, Cuba, navy base to determine whether a dozen or so terrorism suspects held there should be prosecuted or freed. If the prisoners are determined to be “unlawful enemy combatants” � and all it takes is a scintilla of evidence, however dubious � the prisoners will then be tried by special tribunals created by the Military Commission Act of 2006. On March 26, David Hicks of Australia pleaded guilty to providing material support to a terrorist organization, the first conviction of a Guant�namo detainee brought under the new military commission law. On March 30, Hicks was sentenced to nine more months in custody. Many applauded the resignation of Deputy Assistant Secretary of Defense Charles “Cully” Stimson, who criticized law firms that provided pro bono representation to Guant�namo detainees. After all, in the United States and its territories, everyone is entitled to a defense, and it is unprofessional to chastise those who provide zealous advocacy to the accused. Hamstringing lawyers But the ethics problems in the Department of Defense Office of Military Commissions go well beyond Stimson. While the former deputy assistant secretary for detainee affairs criticized defense lawyers at Guant�namo, the Department of Defense’s latest shenanigan, the Manual for Military Commissions, aims to hamstring these lawyers with an untenable, classic “Catch-22″ situation � abide by the military’s rules and represent your client, or abide by the legal profession’s disciplinary rules and be reassigned or quit. Rule 109 of the manual � the commissions’ ethics rule � prescribes what to do when the commissions’ rules conflict with the ethics rules written by lawyers and approved by courts in the state that licensed the attorney. The manual’s simplistic solution: The Department of Defense’s rules are “paramount.” Rule 109, “Professional responsibility rules for military judges and lawyers,” provides that lawyers “practicing before military commissions shall adhere to any rules of professional responsibility prescribed by the Secretary of Defense.” Now if only the secretary of defense were an attorney with the authority to make these rules, we might be going down the right road. But he isn’t. So here’s the catch: If you are a military attorney who is governed by a state that prohibits the military lawyer from doing something prescribed by the secretary of defense, Rule 109 of the manual has another easy solution � just replace the military lawyer. Of course, the manual fails to mention what happens if the tribunals run out of military lawyers who can’t abide by the Department of Defense rules because they may fly in the face of long-standing, accepted ethics and licensing rules for lawyers. If you happen to be a civilian lawyer, yes, you can stay on the case and continue to represent the client, but only if you agree to waive any conflict that these rules may have with your home state ethics standards. So you can stay as counsel, but be ready to fight for your law license if you do. So the bottom line is that a nonlawyer is providing ethics rules for lawyers, and you either agree to them or find yourself another place to practice. Long history of ethics rules Ethical rules for lawyers have a long history dating back to George Sharswood’s lectures on The Aim and Duties of the Profession of Law (1854). Sharswood delivered his lectures before law classes to teach the future attorneys the importance of “fidelity to claims of truth and honor.” We have come a long way since then. Every state now has ethics standards, and even the military has adopted a code of ethical rules. The American Bar Association, an organization that includes prosecutors, defense attorneys and military lawyers, has model ethics standards that many with enormous expertise have written and reviewed. So highly thought of are these rules that Congress passed a law in 1999 requiring that federal prosecutors adhere to the rules adopted by their state bars. But the secretary of defense has decided that he is entitled to create his own rules. And these rules have not even been drafted. But the contours of his rules are: Play my game or find another ballpark. And the client? Well, after all, many of the detainees in Guant�namo have been there for years. And do they really need lawyers? After all, they are all terrorists. Or are they? Martin S. Pinales is the president of the National Association of Criminal Defense Lawyers (NACDL) and an attorney in Cincinnati. Ellen S. Podgor is a member of the board of directors of the NACDL and is associate dean of faculty development and distance education at Stetson University College of Law in Gulfport, Fla.

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