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The federal government’s ground rules for military trials of foreign terrorist suspects detained on and off the battlefield are just out, and they’re sending chills through veteran civilian defense lawyers. The new rules spell out 33 crimes of war to be prosecuted and procedures for imposing sentences that include death. In addition, the U.S. Department of Defense’s set of eight “military commission instructions” imposes conditions of service on civilian defense counsel that some lawyers say will make it extraordinarily difficult to win acquittal for clients — and will impose financial hardships that will discourage involvement by skilled and successful private attorneys. “A competent attorney will face incredible obstacles in simply presenting a meaningful defense,” said Georgetown University law school professor David Cole. Under the rules, suspects facing a military trial may retain a qualified private defense lawyer, assuming they can find one. Hired lawyers, though, will play second banana to the primary defense lawyer on cases — the military judge advocate general, or JAG. To be eligible to participate, civilian attorneys must swear an oath that includes the following: “I understand that my communications with my client, even if traditionally covered by the attorney-client privilege, may be subject to monitoring or review by government officials using any available means, for security and intelligence purposes.” And this: “I will not discuss or otherwise communicate or share documents or information about the case with anyone except persons who have been designated as members of the defense team.” “That’s a flat-out gag order,” said Miami attorney Neal Sonnett, a former president of the National Association of Criminal Defense Lawyers who currently chairs the American Bar Association’s task force on the treatment of enemy combatants. President Bush signed the order establishing military commissions two months after the Sept. 11 attacks. Last year, Secretary of Defense Donald Rumsfeld enunciated the basic procedures necessary to achieve “full and fair trials.” The new rules, issued by the Pentagon on May 2, are intended to implement the program and ensure that trials are open “to the maximum extent practicable.” So far, though, the president has not given the word to actually begin prosecuting cases. Thus, no charges have been filed, no defendants identified, no trials set and no military personnel assigned to the commission, prosecution or defense. NO REVIEW, EVIDENCE RULES Sonnett said the Defense Department has shaped the commission system to be like the military’s everyday justice system. “That’s their model and it’s a pretty good system,” he said. “But the tribunals do not have the rights of the military justice system. They lack a couple of things that I think should have been included if they really wanted to have something fair and perceived by the world community as fair.” That would include, in his view, some right of civilian review. Also lacking, according to New York attorney Michael Ratner, are the customary rules of evidence, including protections against hearsay. “It’s not a setup for a full and fair trial,” said Ratner, who is the president of the New York-based Center for Constitutional Rights. “In fact, it’s the opposite of what we are used to in the U.S. system of justice. You can’t say it’s a one-way road to conviction, but it’s close.” Miami attorney Albert Krieger, chairman of the criminal justice section of the American Bar Association, said the commission process is seriously flawed and will prove to be an “embarrassment” to the Bush administration. “I think there was an intention by the Defense Department to cut through what they probably view as the irrational and irrelevant antics of counsel at a trial,” said Krieger, who is also a former president of the criminal defense lawyers association. “But if a fair trial is what they wanted, I think they’ve missed very badly. What’s being done is repugnant to our traditional system.” SECRECY RULES Secret evidence apparently will be used heavily at trial. In fact, the rules require civilian defense attorneys to have a security clearance of “secret” or higher. They must also declare at the outset that they are aware such evidence may be used against their clients, and that they won’t get to see it if their security clearance isn’t sufficient. The defense team, however, will have access to all secret evidence because the JAGs will be cleared to see it. “That seems to me a real problem,” Cole said. “The only one who can see such evidence is someone within the military command.” The new operating rules also impose problematic restrictions on how and where civilian defense lawyers can do their job. All work in defense of a case, “including electronic or other research,” must be done at the site of the trial. Also, the prosecution is not required to give the defense access to case evidence or the names and contact information of witnesses until a week before a trial is scheduled to begin. Those restrictions amount to a government chokehold on the time and opportunity to investigate a case. Some experts say it places nearly insurmountable hurdles between the accused and a verdict of not guilty. “How do you prepare? I don’t know how, when the government controls access to information,” Krieger said. “We know that even if well-intentioned, substantial errors can be made that are only uncovered by vigorous investigation by defense counsel. With this I can’t interview witnesses because the information that would make my questions relevant is derived from classified information that I can’t use.” INVITING ‘BANKRUPTCY’ The new rules also present serious financial challenges for private defense lawyers. There are nearly 650 al-Qaida and Taliban terror suspects held at the U.S. Naval base in Guantanamo Bay, Cuba, where their location and status affords them no constitutional rights. Most of them likely will be put on trial there. Other so-called “unlawful combatants” now being held in Iraq and Afghanistan also may be tried half a world away. Despite this, the new rules declare that the federal government won’t pay any expenses incurred by the civilian lawyers to defend indigent defendants. In the oath, civilian lawyers also must pledge that the military proceedings will be their “primary duty” for the duration of the case. “I will not seek to delay or to continue the proceedings for reasons relating to matters that arise in the course of my law practice or other professional or personal activities that are not related to military commission proceedings,” says the oath. Sonnett calls the combination of no government reimbursement for costs and the mandate that private attorneys work primarily on the military tribunal case an invitation to “bankruptcy” for defense lawyers. “They’ve purposely tried to make it difficult for competent counsel to get involved,” he said. Given all that, some of the nation’s most talented lawyers, here and elsewhere, are thinking twice — or, like Krieger, not at all — about plunging into the pool of qualified defense counsel. “Who’s going to want to take a case,” Cole said, “where your conversations are going to be overheard, you are not going to be able to speak about the case to the press or anyone else, you are not going to be able to see classified evidence that’s being used to convict your client and your case is going to essentially take over your life — often without compensation? Very few lawyers are going to be lining up.” “Maybe they’ll get a bunch of retired lawyers,” said Ratner, who is part of a defense team that represents the families of two Australians and two Britons detained at Guantanamo Bay. Sonnett was particularly bothered about the government’s eavesdropping plans. “How can you expect a client to confide in you when he knows he’s being overheard?” he complained. “By signing the affidavit, you are acknowledging and agreeing to the kind of surveillance it describes. I’m not sure I could ever agree to that kind of surveillance.” Whoever finally signs on, one thing is clear: No foreigners can be retained as civilian attorneys, even though the detainees hail from 42 different nations. Under the rules, only U.S. citizens can apply as their lawyers. With many nations pressing for the return of their citizens, and Secretary of State Colin Powell’s public caution last month that the slow pace of legal review was hampering relations between the United States and other countries, legal action by the U.S. government is expected to intensify. Indeed, the government announced the release of 13 ex-terror suspects from Guantanamo last week. But the Pentagon’s table-setting on terrorist trials is giving rise to fundamental legal concerns. “This whole tendency toward secrecy and treating the defense lawyer as an impediment rather than as an essential part of the system is very disturbing,” Sonnett said.

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