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Proposed Amendments to the Military Commissions Act: (3) The Right to Counsel

by Professor Will Huhn on July 30, 2009

in Constitutional Law,Wilson Huhn

     The National Defense Authorization Act for 2010 amends the Military Commissions Act of 2006 by expressly protecting the defendant's right to choose the attorney who will represent him.

     The Bush administration initially took the position that the prisoners at Guantanamo Bay were not entitled to be represented by counsel, and even after the administration began trying prisoners for war crimes it attempted to control who would be assigned as counsel for the defendants.  The proposed military appropriations law (S. 1390) specifically provides that defendants before military commissions have the right to select the attorney who will represent them.  The bill would enact this provision at 10 U.S.C. Section 949a((b)(2)(C):

     The procedures and rules of evidence in trials by military commission under this chapter shall include, at a minimum, the following rights: … To be represented before a military commission by civilian counsel if provided at no expense to the Government, and by either the defense counsel detailed or by military counsel of the accused's own selection, if reasonably available.

     The changes to the Military Commissions Act which are included in the Senate's version of the National Defense Authorization Act for 2010 were unanimously agreed to by the members of the Senate Armed Services Committee.  They represent a bipartisan effort to bring the law governing military commissions into conformity with the Constitution and our treaty obligations under the Geneva Conventions.  For it is not enough to defeat al Qaeda.  In defeating them we must show how we are different – that the goal of our civilization is that every individual must be treated with dignity and compassion, and that the use of force is cabined to lawful purposes – the military power is subservient to the civilian, and the civilian power is democratically conferred.

     What distinguishes our society from terrorists of any description is our dedication to the rule of law.  As Robert Jackson said in his closing argument at Nuremburg:

Of one thing we may be sure. The future will never have to ask, with misgiving, what could the Nazis have said in their favor. History will know that whatever could be said, they were allowed to say. They have been given the kind of a Trial which they, in the days of their pomp and power, never gave to any man.

But fairness is not weakness. The extraordinary fairness of these hearings is an attribute of sour strength.

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