Rules for Terror Tribunals May Deter Some Defense Lawyers
By NEIL A. LEWIS
New York Times
WASHINGTON, July 12 United States officials say that when they begin military tribunals for prisoners charged with terrorism, they greatly want the trials to be seen as fair, both in the nation and throughout the world.
But as the Pentagon prepares for the first such proceedings in more than 50 years, it is encountering a potent criticism: many lawyers and bar groups say the conditions for civilian defense lawyers are so restrictive that they might not agree to participate in the process and thereby lend it legitimacy.
The issue of whether lawyers should agree to defend prisoners in proceedings at the naval base at Guantánamo Bay, Cuba, has been raised most forcefully so far by Lawrence S. Goldman, president of the National Association of Criminal Defense Lawyers, which has 11,000 members including most of the nation's prominent defense lawyers.
Mr. Goldman, a New York lawyer, wrote in the association's magazine this month that his group had considered soliciting people for a task force of experienced defense lawyers who would volunteer their services to tribunal defendants. But his group was troubled by restrictions on issues like information gathering and the privacy of lawyer-client conversations.
"In view of the extraordinary restrictions on counsel, however, with considerable regret, we cannot advise any of our members to act as civilian counsel at Guantánamo," he wrote. "The rules regulating counsel's behavior are just too restrictive to give us any confidence that counsel will be able to act zealously and professionally."
In an interview, Mr. Goldman said his concern was that lawyers could be "lending their legitimacy to what would otherwise be a sham proceeding." He said his group had not flatly advised lawyers not to participate but would take up the issue at the group's annual meeting next month.
Anyone charged before a military commission would be provided a lawyer from the military, but the complaints are about the conditions under which they could hire an additional civilian lawyer.
The restrictions that have troubled Mr. Goldman, as well as officials of the American Bar Association, include a requirement that defense lawyers acknowledge that their conversations with defendants may be monitored by the military. The Pentagon says none of the information collected that way may be used in the prosecution.
The Pentagon has been sensitive to some of the criticisms and has modified two regulations in recent days. Under the original regulations, defense lawyers would have been required to do all their trial work at Guantánamo, the remote naval base controlled by the United States, on the southeastern tip of Cuba. Lawyers would also have been restricted as to whom they could consult on their strategies. The modifications appear to address those concerns.
Whit Cobb Jr., the deputy general counsel at the Defense Department, said in an interview that the restraints were largely "driven by the ongoing war on terrorism and the need to protect intelligence."
But Mr. Cobb said defense lawyers should feel comfortable with the procedures, describing them as only slightly different than the usual civilian criminal proceeding or even a court-martial. "There are several similarities, like the availability of defense counsel, the concept of reasonable doubt and the right to remain silent that will seem familiar to many," he said.
Nonetheless, many do feel uncomfortable. Neal R. Sonnett, a Florida lawyer who is the chairman of the American Bar Association's task force on treatment of enemy combatants, said that even with the changes in the rules, "I find them extremely troubling."
Mr. Sonnett said the changes were encouraging and convinced him that the military was not purposely trying to discourage civilian lawyers from participating. He said he hoped the Pentagon would ease other restrictions, especially the one allowing monitoring of conversations.
"The participation of civilian lawyers is very important to the credibility of these tribunals around the world," Mr. Sonnett said. "If lawyers participate in the process and lend it an air of legitimacy without being able to contribute effectively, then we would fall into a trap that lawyers shouldn't fall into."
Mr. Sonnett said that his group, which has more than 410,000 members, would
take up the matter next month at its annual meeting.
Nonetheless, the National Institute of Military Justice, a Washington group, said it would be wrong for civilian lawyers to boycott the proceedings. In a statement, the group acknowledged serious questions about the procedures but added, "It would be as unfortunate for the American justice system for competent civilian defense counsel to make themselves unavailable in military commissions as it would be if civilians were formally precluded from participation."
On July 3, President Bush designated six captives from the Afghanistan war as eligible for the military tribunal process. Pentagon officials say that the six, who are believed to include two Britons and one Australian, are only the first batch that may be tried before a commission.
Officials have yet to decide if any of the six will be charged. So far, officials said, they have had informal applications to act as defense counsel from 10 civilian lawyers.
Grant Lattin, one of those, said that he thought that number was low and that he understood why. Mr. Lattin, a former lieutenant colonel in the Marine Corps, said that of the thousands of lawyers with experience in military law, plenty should want to participate in what would be a historic event.
"But there has been widespread uneasiness," Mr. Lattin said. "Some people feel strongly about the essential ethical issue here, that is whether these restrictions will make it impossible for them to mount a zealous defense." On balance, he said he believed it was important to participate. But other factors may make his taking part uncertain.
The regulations require defense lawyers to be responsible for their own transportation to and from Guantánamo. The cost for a security clearance can be as much as $2,800 for the kind of top secret classification that would entitle the lawyer to see much of the material.
Mr. Lattin said it would be difficult to devote weeks or months to such a case without compensation.
The Pentagon sought evaluations of the regulations from some prominent outsiders. One of them, Prof. Geoffrey C. Hazard Jr. of the University of Pennsylvania Law School, said in an interview that he had told military officials that many lawyers would be hesitant to serve under the restrictions and "that would cast doubt on the legitimacy of the proceedings," and suggested that they consider changes.