Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Hundreds of individuals and groups weighed in last week on the question of whether prisoners captured in the war on terrorism and held at Guantanamo Bay should have access to the federal courts. Among the parties signing on to 17 amicus curiae briefs filed with the U.S. Supreme Court: two former secretaries of the navy, 175 members of the British Parliament, several retired federal appellate judges, a coalition of former U.S. prisoners of war, Amnesty International and the American Civil Liberties Union. All the briefs filed last week came down squarely in support of those detained at Guantanamo Bay. Except one. The defense team assigned to represent accused terrorists before military commissions filed a brief staking out a middle ground. The brief is noteworthy because it represents the first public criticism from within the Pentagon to the procedures that will govern the military tribunals. And coming before a Supreme Court that is so often closely divided, the lawyers’ arguments could prove influential. In their brief, the five military defense attorneys assigned to represent accused terrorists before military commissions endorse the president’s wartime power to hold enemy combatants indefinitely, but urge the Supreme Court not to close the door on lawsuits arising from military commission proceedings. The careful posture reflects the lawyers’ unique position as active duty military officers and zealous advocates for those who may be tried before commissions. “These are military men and women who trust their commander in chief, but trust has never been enough when something as fundamental as justice is on the line,” says Georgetown University law professor Neal Katyal, who advised the defense team on the brief. “We’d like the Court to recognize that habeas corpus jurisdiction exists for those who face military commissions.” In the consolidated cases of Rasul v. Bush and Al Odah v. United States, the Bush administration maintains that the U.S. naval base at Guantanamo Bay in Cuba is technically foreign soil and that noncitizens held there have no access to U.S. courts. The deadline for parties to file briefs supporting the government’s position is Feb. 17. Air Force Lt. Col. Sharon Shaffer, deputy chief defense counsel for military commissions, says the defense team submitted the brief to make it clear to the Supreme Court that a broad jurisdictional ruling in the case would impact the rights of their future clients. “We were fearful of the fact that the Supreme Court might take an additional step and say that no individual, no enemy alien ever has access to U.S. courts,” says Shaffer, who spent three years as a military judge before taking her current post. Shaffer is the most senior lawyer to sign the brief. Chief Defense Counsel Air Force Col. Will Gunn, who under the Pentagon’s rules acts more as an administrator than a hands-on defense counsel, did not see the brief before it was filed. Before filing the brief, the defense lawyers notified the general counsel’s office of the Defense Department and sought ethics opinions from their services. Critics of the military commission process say they find it encouraging that the Defense Department allowed the brief to be filed at all. “This shouldn’t come as a surprise,” says Pentagon spokesman Maj. Michael Shavers. “We’ve said all along that we expect defense counsel to zealously defend their clients.” While the military defense lawyers stop short of formally opposing the government, their brief sharply criticizes Pentagon plans for trying alleged terrorists before military commissions. In the absence of federal court review, the lawyers argue, military commissions amount to a “legal black hole.” Coming just two weeks after new Pentagon regulations detailing the appellate process for military commissions, the brief raises questions about the constitutionality of a judicial system that begins and ends with the executive branch, bypassing any review by civilian courts. “The Constitution cannot countenance an open-ended Presidential power, with no civilian review whatsoever, to try anyone the President deems subject to military tribunal, whose rules and judges have been selected by the prosecuting authority itself,” the brief states. The defense team signals that it hopes to obtain broader protections for those facing military commissions by turning to the federal courts — even though the system designed by the Defense Department does not provide for any such review. Under the Pentagon’s rules, verdicts reached by military commissions will automatically proceed to a three-member review panel and then to the secretary of defense or the president for final disposition. “It’s our view that the federal courts should be open to them,” says Army Maj. Mark Bridges, a member of the defense team. “We have concerns about the independence of the review panel and whether it complies with international law,” he says. The lack of any independent appellate review has also been the subject of consistent criticism from academics, the American Bar Association and an array of watchdog groups. “This is a process in which the military is the captor, jailer, prosecutor, defense lawyer and judge,” says Neil Sonnett, a Miami defense lawyer who chairs the ABA’s Task Force on the Treatment of Enemy Combatants. “Unless there is a process that provides ultimate appeal to a civilian court, there is going to be a perception that these are kangaroo courts.” Sonnett, who says the ABA reviewed a draft version of the Dec. 30 regulations, calls the final rules a “substantial improvement.” “I think it represents a good-faith attempt to make the process at least appear independent,” Sonnett says. Also on Dec. 30, the Defense Department tapped four civilian lawyers to serve as review panel members: former U.S. Attorney General Griffin Bell; former Secretary of Transportation William Coleman Jr.; Rhode Island Chief Justice Frank Williams; and former U.S. Rep. and current Pennsylvania state judge Edward Biester. Review panel members will serve two-year terms and cannot be reappointed. The panels are encouraged to review written submissions from a defendant’s home government, and will publish their opinions. Neither the secretary of defense nor the president in his final review can overturn an acquittal or increase the sentence imposed by a military commission. The appointment of prominent civilian jurists to serve on review panels was clearly aimed at deflecting the criticism of those who claimed the review panel lacked independence. “We have the right process, and we picked the right people,” says Air Force Maj. John Smith, a Pentagon lawyer who helped write the rules. “No one sitting on that panel has any incentive to rule one way or another.” No one has yet been charged before a military commission. Six individuals have been designated as subject to commission trials, and two detainees, David Hicks of Australia and Salim Ahmed Hamdan of Yemen, have been assigned military defense counsel. Hamdan’s military defense lawyer, Navy Lt. Cmdr. Charles Swift, says he fears that military commission proceedings will not be seen as legitimate without federal court review. “I don’t believe the rules improve the situation,” Swift says. “It remains a closed loop.” He adds, “I use the analogy of a football game. In the present system, the government is the coach. They are also the sole people on the rules committee and the chief referee. I think that creates, at a minimum, a perception issue that this will be unfair.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.