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Restrictions on Effective Defense

The military commission rules impose important limitations on the ability of defense counsel – both military and civilian lawyers – to mount an effective defense of their clients. Many of these restrictions are spelled out in the affidavit civilian lawyers for the commissions are required to sign and with which military defense counsel must comply. A military order issued on February 5, 2004 revoked some of the worst provisions in the affidavit, including a broad-based infringement of attorney-client confidentiality and onerous restrictions on civilian defense counsel as to whom they could communicate documents or information.¹⁹ There remain, however, significant restrictions on the ability of defense counsel to fully and fairly present their client’s defense.

Attorney-Client Confidentiality: Perhaps the most important of these restrictions is infringement of the confidentiality of attorney-client communications, which will deprive a defendant of that most fundamental of rights: to have a legal representative with whom one can have full and complete confidence. In February 2004, the Defense Department amended rules that permitted the government to monitor all communications between attorneys and defendants for “security and intelligence purposes.”²⁰ Such conversations are traditionally covered by the attorney-client privilege of confidentiality, in order to encourage clients to confide openly with their attorneys.

The new rules require that such monitoring be approved only upon a determination that it would “likely produce information” for security or intelligence purposes or that it “may prevent” communications facilitating terrorist operations. More important, military and civilian defense counsel must now be notified in advance of any monitoring of their communications, and that communications solely among defense counsel will never be monitored. The new rules also detail the use and review of monitored communications.²¹

Human Rights Watch welcomes these changes, but remains concerned about those cases where the government insists on monitoring attorney-client communications. The ability to communicate candidly and effectively with one’s attorney is inherent in the right to counsel, which in turn, helps secure the overarching right of due process and a fair trial. The U.S. government’s willingness to compromise these rights is deeply troubling.

The commission rules state that any evidence or information derived from such communications “shall not be used in proceedings against the individual who made or received the relevant communication; and such information shall not be disclosed to personnel involved in the prosecution or underlying prosecution investigation of said individual.”²² Restricting the use of information obtained from monitoring attorney-client conversations does not fully mitigate the harm from such monitoring. The mere fact that a conversation may be monitored will likely inhibit candid conversations between the accused (whether guilty or innocent) and his attorney. A defendant will rightly hesitate to name names, including those of relatives and friends who could support his claims, out of genuine concern that the U.S. government might then seek to apprehend those persons. Under the plain wording of the provision, information so gathered could also be used by the Appointing Authority prior to commission proceedings (regarding a plea agreement) and after proceedings (regarding early release or a pardon).²³ The rights to counsel and to a fair trial are clearly jeopardized when the detaining officials listen in to their conversations with their attorneys, regardless of the subsequent use to which information gleaned from those conversations is put.

Restrictions on Access to Evidence and Proceedings by Civilian Defense Counsel and Defendants: The military commission rules deny civilian counsel with appropriate security clearance the same access to protected information as military counsel. They authorize the Appointing Authority or the Presiding Officer to close proceedings on broad grounds, such as to protect “intelligence and law enforcement sources, methods, or activities; and other national security interests.”²⁴ Civilian defense counsel, unlike military counsel, may be excluded from closed military commission proceedings.²⁵ The commission rules also authorize the Presiding Officer to issue protective orders to safeguard “protected information” – a category of information that goes beyond classified material – including orders to delete the information from documents made available to the defendant or the defense team. The commission may not consider protected information unless it is presented to the military defense counsel. But civilian defense counsel may be denied access to such information even when it is admitted into evidence.

While requiring a security clearance is permissible, Human Rights Watch is troubled that attorneys even with high-level security clearances are not guaranteed access to all materials presented in a case before the commissions. We question the very basis for restricting access to evidence and proceedings by civilian defense counsel who already have undergone a rigorous security clearance. All persons with access to classified information, whether civilians or members of the military, must protect that information. Yet, under the rules, civilian defense counsel may be excluded from critical portions of the trial and be denied access to protected information admitted against the client, even if they have a high-level security clearance.²⁶ These restrictions clearly impinge on the ability to provide effective representation. The Department of Defense should instead ensure that civilian counsel who have received a security clearance be given access to all commission proceedings, including closed sessions, and to all information necessary to their defense work.

Similarly, the military commission rules permit the exclusion of defendants themselves from portions of trials that are closed to the public.²⁷ The accused may not see classified or protected information that is used against him. While the assigned military defense counsel is guaranteed to see all evidence used in the case, the military lawyer may not discuss protected evidence with his client, which prevents the accused from confronting the evidence against him. In August 2005 the Defense Department placed a limitation  on this rule so that an accused may not be denied access to evidence if to do so would deny him a “full and fair trial.”  While Human Rights Watch welcomed the Pentagon’s recognition that access to evidence is necessary for a fair trial, so long as such decisions are made without judicial review by a civilian court, this change may have little practical effect.

Review Panels: All decisions of the military commissions will be reviewed by a review panel that will give the appearance of an appeals court, but whose structure and procedures will not ensure impartial and competent appellate review. The review panel will consist of three military officers (or civilians commissioned for this purpose) appointed by the Secretary of Defense.²⁸ While the review panel will issue a written opinion in all cases after reviewing the record of the trial,²⁹ only at its discretion will it review written submissions by the prosecution and defense and hear oral arguments.³⁰ It is thus not obligated to even consider procedural errors raised by the defense counsel after the trial or gain clarification of the issues though oral argument in a courtroom. The standard of review is also narrow in scope: the panel must disregard procedural errors that would not have “materially affected the outcome of the trial.” Moreover, the rules require, absent an extension, that the panel issue its ruling within 30 days of receipt of the case. This gives defense counsel insufficient time to prepare an appeal and have it included within the review panel’s deliberations.³¹ Taken together, the review panel will present a façade of judicial review at the expense of providing defense counsel with a genuine opportunity to bring forth claims of procedural error and have them fairly adjudged.