WHEREBY a Military Order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” 66 F.R. 57833 (Nov. 16, 2001), and its implementing instructions issued April 30, 2003, defined the proceedings for representing the accused in Military Commissions at Guantanamo Bay;
WHEREBY the Military Commission Instructions impose severe limitations on defense counsel and deny due process and attorney-client confidentiality and privilege;
WHEREBY such limitations make it impossible for counsel to provide adequate or ethical representation, and representation before such a commission would make it necessary for a criminal defense attorney to contract away his or her client’s rights, including the right to zealous advocacy;
THEREFORE BE IT RESOLVED that the NACDL deems it unethical for a criminal defense lawyer to represent a person accused before these military commissions under the conditions currently imposed upon defense counsel;
THEREFORE BE IT FURTHER RESOLVED that, conversely, the NACDL will not seek to censure criminal defense lawyers who feel obligated and undertake to represent persons accused before military commissions, as long as they raise every conceivable good faith argument concerning the jurisdiction of the military commission, the legality of denial of application of the Uniform Code of Military Justice, international treaties, and due process of law, including resort to the civilian courts of the United States to determine whether the proceedings are constitutional, and as long as they challenge the provisions that impair any constitutional rights or other important legal protections like attorney-client confidentiality and privilege.
To read the related ethics opinion, click here.