The Right to Counsel at Gitmo
Best as I understand it, the shiny new military commission manual says the following about right to counsel:
- Defendants will generally get military lawyers
- Defendants can use civilian attorneys, but the government isn’t going to pay those attorneys
- If a defendant is charged with a capital crime, they can have someone who specializes in death penalty cases in addition to their other lawyer and the government might even spring for a civilian lawyer
- The government can prevent specific military lawyers from defending defendants by simply not detailing those lawyers to the Office of Military Commission as defense counsel (in the past, the government has basically forced detainees to change defense counsel by reassigning the lawyers; though see the update that seems to limit this to good cause reasons)
- It appears that the manual does not prohibit a detainee from defending himself in a capital case (which is what KSM wanted to do)
All of which seems to make it more likely KSM will end up in a military commission, so he can plead guilty and become a martyr. Though they have required that defendants who represent themselves maintain a particular decorum, suggesting that if KSM uses self-representation as a soapbox, they will force him to accept a lawyer.
Here’s the text of the section on right to counsel [all emphasis my own]:
Rule 506. Accused’s rights to counsel
(a) In general. The accused has the right to be represented before a military commission by civilian counsel if provided at no expense to the Government, by military counsel detailed under R.M.C. 503, or by military counsel of the accused’s own selection, if reasonably available. Except as otherwise provided by section (b) of this rule, the accused is not entitled to be represented by more than one military counsel; however, the person authorized under regulations prescribed by R.M.C. 503 to detail counsel, in such person’s sole discretion, may detail additional military counsel to represent the accused.
(b) Capital Offenses. In any case in which the trial counsel makes a recommendation to the convening authority pursuant to R.M.C. 307(d) that a charge be referred to a capital military commission, or in which the convening authority refers a charge to a capital military commission, the accused has the right to be represented in accordance with section (a) above, and by at least one additional counsel who is learned in applicable law relating to capital cases. The right to be represented by at least one additional counsel who is learned in applicable law relating to capital cases terminates at such time as all charges for which the death penalty is authorized are dismissed or referred as a non-capital offenses. Such appointment of learned counsel shall be in accordance with regulations prescribed by the Secretary of Defense. If necessary, such additional learned counsel may be a civilian and may be compensated in accordance with regulations prescribed by the Secretary of Defense.
Discussion
See R.M.C. 502(d)(4) for determining qualifications of civilian defense counsel. See R.M.C. 502(d)(7) and 505(d)(2) concerning the duties and substitution of defense counsel. These rules and this Manual do not prohibit participation on the defense team by consultants not expressly covered by section (d) of this rule, as provided in such regulations as the Secretary of Defense may prescribe, subject to the requirements of Mil. Comm. R. Evid. 505. See 10 U.S.C. § 949a(b)(2)(C).(c) Individual Military Counsel
(1) Reasonably available. Counsel are not reasonably available to serve as individual military counsel unless detailed or assigned to the Office of Military Commissions to perform defense counsel duties at the time the request is received by the Office.
(2) Procedure. Subject to this section, the Secretary may prescribe procedures for determining whether a requested person is “reasonably available” to act as individual military counsel. Requests for individual military counsel shall be made by the accused or the detailed defense counsel with notice to the trial counsel. If the requested person is not reasonably available under this rule, the Chief Defense Counsel shall deny the request and notify the accused. If the requested counsel is not among those listed as not reasonably available in this rule, the Chief Defense Counsel shall make an administrative determination whether the requested person is reasonably available. This determination is a matter within the sole discretion of that authority.
(d) Self-representation. The accused may knowingly and competently waive the assistance of counsel, subject to the provisions of subparagraph (3).
(1) The accused may expressly waive the right to be represented by counsel and may thereafter conduct the defense personally. Such waiver shall be accepted by the military judge only if the military judge finds that the accused is competent to understand the disadvantages of self-representation and that the waiver is voluntary and understanding.
(2) The military judge shall require that a detailed defense counsel remain present even if the accused waives counsel and conducts the defense personally.
(3) If the waiver is accepted, the accused shall conform the accused’s deportment and the conduct of the defense to the rules of evidence, procedure, and decorum applicable to trials by military commission.
(A) Failure of the accused to conform to the rules described in subsection (3) may result in a partial or total revocation by the military judge of the right of self-representation.
(B) In such case, the military counsel of the accused or an appropriately authorized civilian counsel shall perform the functions necessary for the defense.
Update: In another section, the manual does seem to limit how the government can change defense counsel somewhat:
(d) Changes of detailed counsel.
(1) Trial counsel. An authority competent to detail trial counsel may change the trial counsel and any assistant trial counsel at any time without showing cause.
(2) Defense counsel.
(A) Before formation of attorney-client relationship. Before an attorney-client relationship has been formed between the accused and detailed defense counsel or associate or assistant defense counsel, an authority competent to detail defense counsel may excuse or change such counsel without showing cause.
(B) After formation of attorney-client relationship. After an attorney-client relationship has been formed between the accused and detailed defense counsel or associate or assistant defense counsel, an authority competent to detail such counsel may excuse or change such counsel only:
(i) Upon request of the accused or application for withdrawal by such counsel; or
(ii) For other good cause shown on the record.
[snip]
(f) Good cause. For purposes of this rule, “good cause” includes physical disability, military exigency, and other extraordinary circumstances which render the member, counsel, or military judge unable to proceed with the military commission within a reasonable time. “Good cause” does not include temporary inconveniences which are incident to normal conditions of military life.
•Defendants will generally get military lawyers
vs.
•The government can prohibit military lawyers from defending defendants…
Anybody else see a problem here?
Point being that the defendant can have a military defense counsel, but not necessarily the one he wants. The government is giving itself all the discretion on that point, and has used that discretion in the past to make sure that military lawyers don’t get to keep defend defendants if the circumstances of the case change. Though usually they do this to deprive detainees of the lawyer they had once the case moves to civilian court.
Also, relatedly, there is a section on withdrawal of charges that pretty much envisions them withdrawing MC charges and immediately recharging in civilian court (though they don’t spell that out). Which is not surprising since every time they risk losing a case before SCOTUS they simply withdraw the charges and move to civilian courts.
Changing lawyers, of course, is like getting through customs and immigration at Dulles without a passport and visa. Security clearances and telecoms and travel restrictions are bad enough. There’s also the delay in the new lawyer(s) getting up to speed, their getting their new client able to trust them, communicating with them in a common language while they rage about having to go over all this one more time, and doing all that without client confidentiality while under the 24/7 watchful eye of government. It’s a useful way to keep weak cases out of any tribunal and to avoid a public declaration that what one is doing is illegal. I wonder what the Gitmo equivalent is of the Friedman Unit.
The manual does, however, explicitly protect attorney-client communication.
See? We have had hopey change!!
I can’t find that section, but I bet there a loophole that allows atty-client discussions to be monitored, as long as they’re not OBVIOUSLY used in court.
Boxturtle (And the government is not above cheating in any case)
Have you a cite? And so now the government will discard all prior communications it has collected between attorneys and attorneys and their clients, and not use any such information in any way?
The section starts on page PDF217.
And I should note that they do appear to prevent the change of defense counsel once a relationship has been formed, except for cause.
If I read it right, the requirement is not to DISCLOSE atty-client info. There is nothing there that prevents it’s being recorded and held confidentially. And if you look at the #1 exception to this rule, it says that information is not privileged in the case of future crime or fraud.
Remember, the government says hiring a lawyer can in some circumstances be considered a felony violation of terrorist support laws. So if you discuss hiring a second lawyer….
Boxturtle (This is scary. Will some real lawyer tell me I’m full of sh**, please?)
Thanks, I found it, too.
The section on attorney-client privilege is Rule 502, starting on p. III-20, pdf. 217. At first blush, it seems to mirror state law descriptions of the reach of client confidentiality, that it is the client’s right, not the lawyers, etc. The issue most likely to arise is the government’s claims regarding this exception:
“(d) Exceptions. There is no privilege under this rule under the following circumstances:
“(1) Crime or fraud. If the communication clearly contemplated the future commission of a fraud or crime or if services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;”
There are some, former Air Force General Boykin, for example, who regard being Muslim a continuing crime. There are others who think that talking to anyone in or outside Gitmo about what happened to them in Gitmo or who they saw there or who interrogated them there to be a possible crime.
Such communications, with limited exceptions, are sacrosanct in domestic law, too. Bush/Obama claim not to listen in on domestic attorney-client communications, but their security apparatus almost certainly picks up such communications. I doubt that any journalist reporting from or defense lawyer working at Gitmo feels confident that their communications remain confidential.
The reach of this exception as applied in Gitmo will be something to watch, along with related rules about the procedures to be used and frequency with which lawyers can talk to their clients.
Nice to know that a defendant, possibly charged with a capital crime, can have a government military lawyer whenever and so long as the government finds it “convenient” or “reasonable”. The extent to which Mr. Obama is bending over backwards to embrace the rule of law in the place where the world’s attention is most riveted takes one’s breath away.
And if the defendant chooses a civilian lawyer at his own expense, the government will be able to prevent a choice they don’t like by refusing to grant said lawyer clearence.
Oddly, they only require a SECRET clearence for a civilian lawyer, yet a lot of this stuff is still TS/SCI. Wonder if they plan to use that to control discovery, while appearing to be reasonable.
You could also read that withdraw of charges section to allow the court to simply end proceedings and send the prisoner back to his cell. There seems no requirement to send it to a real court.
Boxturtle (Did I hear someone mention Calvinball?)
I think you’re going to see all these exceptions to various rules of evidence, etc used very sparingly. ObamaLLP’s goal will be to get convictions, not hammer the defendant with everything. This fellow can’t cross examine so-and-so, this fellow can’t have the lawyer he wants, another fellow won’t be allowed certain evidence.
The hope will be that on appeal, the courts will be able to find enough leeway to call the trial overall fair enough.
Boxturtle (Scary Brown Moslem is worth three votes amongst the supremes any day)
To paraphrase Tina Turner, “What’s “fair” go to do with it?”
Gitmo prosecutors will do what any good prosecutor does, use every legal tool at their disposal to gain and sustain a conviction. If the rules permit them to challenge, question or deny something to the defense, and contradictory rules of law such as sections of the Constitution arguably do not apply, they’ll do it.
I do not think Obama will push this crew of prosecutors as far as Bush and Rumsfeld and Cheney would have pushed theirs, but he won’t reform or make fairer any practice.
These commissions are about political theater and political damage control. They are not about defending the rule of law or the nation’s security, nor are they about the routine legal process of fact finding, of setting detainees free because they’ve done nothing provably wrong, or about meting out publicly demonstrably deserved punishment.
That is very true of line level prosecutors in general as well as here; and it is exactly why leadership in prosecutor’s offices and government government in general is so critical, because the leadership sets the standards and guidelines for prosecutorial offices. There needed to be a fundamental reset in this regard, and doing so was one of the central planks of Obama’s candidacy as well as reason he got elected. His failure to follow through is almost total.
I think that failure to provide mid-level leadership, consistently supported by top managers, including at the White House, has been felt by lawyers in every agency of government. Many good lawyers, to the dismay of the likes of Rumsfeld and Cheney, both of whom spent careers asserting authority outside their bailiwick, stayed on during the legally and morally black years of Team Bush. That light at the end of the tunnel that was supposed to be Obama’s turned out to be a mirror; it was only the reflected light from the candle in the window those attorneys had kept burning.
Those candles lit a direction Obama has famously declined to follow. The vacuum of leadership under Obama is almost as pronounced as it was under Bush, which has come as a surprise to the hopeful and a disappointment to the cynical or streetwise.
What those lawyers see is the mildly progressive Greg Craig being pummeled and hustled out, only to land a cushy seven-figure “earning” salary at that bastion of ethical professional conduct, Goldman Scratch. They see Eric Holder struggling to keep his boss’s attention, and even to get it in competition with Rahm the Enforcer. They see Dawn Johnsen left to dangle like a puppet, only to have her political appointment strings cut off by Obama’s desperate desire not to make waves. (As if paddling in an open boat would make or stop the swells approaching from the stern).
They see make no waves Elena Kagan a sigh away from a Sup. Ct. appointment by having followed the opposite approach promoted by A Few Good Men, one based seemingly solely on avoiding the supposed faults of the Clarence Thomas nomination (“Have No Record”, a path also cut by John Roberts). Someone who has spent a lifetime avoiding creating a paper trail of her passions and beliefs is unlikely to have kept or nurtured the ones she started with. She has certainly not modeled how to turn them into constructive policy.
Many government lawyers hoped the Obama presidency would signal the return of a leader who valued the law as more than a punch line at a political fundraiser. Instead of a once and future king, whether in Aachen or Camelot, they have a baron like any other.
Yes. A soundtrack for this Elegy:
“Crying Shame”;
Jack Johnson
http://www.youtube.com/watch?v=GN6JyI2tIAg
Lyrics:
http://www.azlyrics.com/lyrics/jackjohnson/cryingshame.html
Some prosecutors protest, like JAG Col Stuart Couch, and JAG Lt. Col. Darell Vendeveld. But that’s likely a very difficult road, and not everyone could who might want to.
You have to be willing to walk away from a military career in order to do that, a hard choice that conflicts with tradition, loyalty, ambition, bills, spouses and children.
Yes. And the people who write the rules [or NOT] damn well know it.
I do not think Obama will push this crew of prosecutors as far as Bush and Rumsfeld and Cheney would have pushed theirs, but he won’t reform or make fairer any practice.
I think the Obama administration has shown that all it cares about is winning, so I would expect them to do whatever it takes to win. Obama’s MO seems to be to basically copying Bush while making a few cosmetic changes and then declaring how much he isn’t like Bush and how what he did was just so good.
OT: Just gave this link in Scarecrow’s thread on the oil spill, but wanted to share it here. SkyTruth is respected in analysis of slicks and they now say it’s probably bigger than the Exxon Valdez spill and only 10 miles from the coast a half hour ago. See today’s post and yesterday’s post on their blog for details. Yesterday’s has good science in it.
Jeebus.
How much would David Boies + Ted Olsen cost? (Any Saudi’s with that kind of money?)
Olson is busy; in addition to the Prop 8 gig, he just signed on to represent Paul Minor in the Mississippi mess.
Too angry with Obama and his torture-lying military commission attorneys to do more than quickly post this… from Daphne Eviatar’s reporting on today’s testimony at the Khadr “trial”:
Start with the “clean teams”, eh, Mary?
Daphne notes that the defense is complaining that they’ve only been able to interview three of the thirty or more of Khadr’s interrogators. The government is claiming that Khadr was treated just fine, thank you. The defense is going to say Khadr’s own statements are inadmissible because coerced.
This is such a kangaroo court, prettified up with fine print exceptions, as EW has pointed out.
Maybe they’ll bring in Marc Thiessen as an expert on interrogation.
When will we see a headline: Obama’s Military Lies About Khadr Torture!
Great coverage, Daphne. I see that Spencer interviewed her, too. See his blog.