Lawyers in Tribunals to Face Daunting Task

The accused terrorists who would face military tribunals are expected to be represented by lawyers wearing the military uniforms of the nation they’ve allegedly attacked, few of whom have ever tried a death penalty case, according to lawyers experienced in military trials.

The draft rules the Bush administration has drawn up for military tribunals would require the Pentagon to appoint military attorneys for foreigners accused of terrorism on U.S. soil or crimes against humanity in the war in Afghanistan. But the Defense Department has a shallow bench of lawyers with death penalty experience--or jury trial experience generally.

“You can probably count on two hands the number of lawyers in the military who have done a capital trial,” said Dwight Sullivan, a former Marine Corps lawyer who is now managing attorney at the Maryland chapter of the American Civil Liberties Union.

Military defense attorneys haven’t tried a capital case since Jessie Quintanilla was convicted of murdering his executive officer and attempting to kill two other Marines at Camp Pendleton in 1996. No one has been executed in a military case since 1961. A relatively high turnover rate among Pentagon defense attorneys has further depleted the ranks.

The resulting judicial procedure presents a daunting task for a small pool of attorneys who already face a stark personal conflict that goes beyond those faced by most of their private-sector colleagues: The client is accused of attacking the nation they have sworn to defend.

Pentagon officials declined to comment on how tribunal defendants would be represented. But former Pentagon lawyers say private attorneys and the few death penalty veterans among military reservists could be tapped to bridge the gap in experience on capital cases.

“Whatever the procedures are for the military tribunals . . . the prisoners that we capture will be given a heck of a lot better chance in court than those citizens of ours who were in the World Trade Center or in the Pentagon were given by Mr. Bin Laden,” President Bush told reporters Friday at his ranch in Crawford, Texas.

Military Counsels Don’t Necessarily Lead Cases

Even in secret tribunals, the Pentagon has historically let accused spies, war criminals and saboteurs hire their own attorneys. The right to outside counsel is mandated for soldiers--but not necessarily terrorist suspects--who face courts-martial under the Uniform Code of Military Justice. But few accused terrorists are likely to be able to afford experienced outside lawyers, and those who are hired would be denied access to classified evidence against their clients until they undergo a stringent and sometimes-lengthy Pentagon security clearance review.

Although the appointed military counsels are expected to lead the case, it doesn’t always work that way in practice, said Middletown, Va., attorney Charles Gittins, whose military clients have included Cmdr. Scott D. Waddle, who lost his command after guiding the submarine that sank a Japanese fishing vessel this year.

“I try more cases in a month than most military counsels try in a year,” Gittins said. “They’re usually just out of law school. Even the senior guys have maybe tried five cases before a jury. The stakes are pretty high for somebody who’s had maybe five jury trials.”

Some high-profile private lawyers have taken on controversial military clients. Founding Father John Adams defended British soldiers accused of killing five Colonists in 1770. Defense attorney F. Lee Bailey represented military defendants in the My Lai massacre during the Vietnam War.

But in a major World War II-era tribunal that legal scholars look to for precedent, eight Nazi spies who crept into the United States aboard submarines were represented by a highly regarded military lawyer, Kenneth Royall, who later became secretary of the Army.

Trials Could Become Targets of Terrorists

The terrorism cases could be the sternest test yet of the military judicial system, wherever the lawyers come from.

“These will be among the most unpopular cases in the history of the country, and it will call on the highest traditions of the bar, and the traditions are very high,” said Eugene Fidell, president of the National Institute of Military Justice. “The more unpopular the client, the more important that duty is.”

The terrorism tribunal cases would be different from anything that came before, because the trials themselves are likely to become targets for other terrorists, said Lt. Col. Wayne Elliott, a retired Army lawyer who has written a paper on tribunals that has been consulted by officials drafting the tribunal rules.

“There are a lot of people involved who are willing to kill everybody involved in this process,” Elliott said.

Nevertheless, experienced military attorneys said the publicity and professional challenge of the tribunal cases likely would lure private-sector attorneys and their military counterparts to volunteer.

“I would want to try one,” said retired Maj. Gen. Hugh Overholt, a former judge adjutant general. “If you’re a trial lawyer, you want to be where the action is. You want to go where the sound of the guns are. . . . The alternative is to try an AWOL case at Ft. Backtrack.”

If he were running the tribunals, Overholt said, he would gather the experienced military defense counsel from all of the services and train them in the rules of the military tribunal and capital trials at the Army’s JAG school in Charlottesville, Va.

The 45 Taliban and Al Qaeda fighters now in U.S. custody have not been given access to attorneys as they’re being interrogated, and past war tribunal defendants likewise were denied that right. Even American Taliban fighter John Walker Lindh, whom Bush has said could not be tried under a tribunal because he is an American citizen, has been denied access to the lawyer hired by his family in Marin County.

Pentagon spokeswoman Victoria Clarke described the draft regulations as “a work in progress” that could still undergo significant changes. The rules are being drafted by the White House, the Pentagon, the Justice Department and National Security Council. The draft must be approved by Defense Secretary Donald H. Rumsfeld.

Private attorneys experienced in military cases expressed concern over Bush’s Nov. 13 order creating the broad outlines of a tribunal system but were pleased by details of the draft reported this week.

Those brought before the military courts on terrorism charges would be presumed innocent. The evidence must show they were guilty beyond a “reasonable doubt,” according to the proposed regulations that were circulated to the White House and the Justice Department. This is the same high standard set in civilian trials and in courts-martial of U.S. military officers.

Important Questions Remain Unresolved

The proposed regulations also presume that the trials will be open and that a death sentence would require a unanimous verdict of the military judges. That goes beyond the two-thirds majority required for Nazi defendants under President Franklin D. Roosevelt during World War II.

Administration officials say they have not resolved the most important questions on the military tribunals: who will be tried and where will the trials be held. Rumsfeld said Thursday that he has ordered officials at the U.S. naval base at Guantanamo Bay, Cuba, to be prepared to accept detainees, although he had not decided whether they would be tried there.

Those familiar with the process say it’s unlikely that the rules would pay private defense attorneys out of the U.S. Treasury.

“Basically they will be volunteers,” said retired Brig. Gen. David M. Brahms, a former top lawyer for the Marines. “My sense is that there isn’t a giant fund out there willing and ready to provide money.”