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In February the Pentagon announced that it would seek the death penalty for six high-level detainees being held for the past six years at Guantánamo Bay. Their alleged crime: plotting the September 11 attack on the World Trade Center. Since then, there’s been little progress on what promises to be the most significant trial to come out of the war on terror. One reason is that while the Military Commissions Act of 2006, which created the military commissions being used to try these cases, grants each detainee the right to a military defense lawyer, the defense department doesn’t appear to have enough qualified lawyers to represent them. “I don’t believe any would meet the standards of the American Bar Association for being lead counsel in a death case,” says Tom Fleener, referring to the 15 attorneys in the office of the chief defense counsel when he worked as a military lawyer there. He left last September and is now in private practice in Wyoming. “There may be one attorney in the office who’s had some capital experience on a very limited basis,” says Fleener. “No other attorneys have had any capital experience.” In the parlance of the MCA, the “convening authority”-in this case, a retired military judge-must “refer” charges before the case can proceed. The accused are then to be arraigned within 30 days and the trial should start within four months. The six cases have yet to be referred. The Pentagon’s prosecutors have now had six years to develop their case. Yet only one of the accused so far has been appointed a defense lawyer. “I’m still in the process of determining who is the most appropriate for each of those individual detainees,” says Colonel Steven David, chief military defense counsel in charge of appointing the lawyers. Although civilian lawyers can volunteer to assist the defense, “The government is going out of its way to make it difficult for people to be represented by civilian attorneys,” says David Glazier, a former Air Force officer, now a law professor at Loyola Law School. First, defense counsel must receive security clearance, and pay the cost of doing so. But that’s likely to be the least of their expenses, and civilian counsel receive no financial support from the government. “Think about what that means if you need to fly to Pakistan or Afghanistan to gather evidence,” says David Remes, a partner at Covington & Burling who represents more than a dozen prisoners at Guantánamo Bay seeking habeas corpus review, and is now considering volunteering for one of the capital cases. “You need to hire security in a place like Afghanistan, you need to find an interpreter who is a citizen of the United States, who has top-secret clearance and is not working for the government. He may need to speak Pashtun as well as Arabic. You have to pay that individual, and have to pay the cost of travel and lodging.” Even if big firms like Covington were willing to assume that cost, the procedures under which the trials will be conducted leave very little room for lawyering, and lawyers may not be eager to volunteer for what some see as a rigged game. Civilian counsel cannot meet privately with their clients without video surveillance. They cannot provide classified information to their clients, even if it’s critical to their defense. Hearsay evidence is admissible, and the government need not turn over exculpatory information. Evidence obtained by coercion or torture is also admissible, so long as it’s obtained later in another manner again. “They have teams of interrogators who sit down with these previously tortured individuals over lattes and biscotti and talk the individuals into saying the same thing,” says Remes. All this has led to concern at the American Bar Association. In a letter sent to President George W. Bush on February 27, ABA president William Neukom wrote that “the military commission system at Guantánamo does not adhere to established principles of due process fundamental to our nation’s concept of justice.” Noting the dearth of available qualified death penalty counsel and significant limitations under which they must operate, he added: “We do not believe military commission trials can or will provide the level of fairness that is consistent with our values and essential to our credibility in the rest of the world.”

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