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Rules for Lawyers Of Detainees Are Called Onerous
"We are not in the position to compel any other government agency to produce information," Air Force Brig. Gen. Thomas W. Hartmann, legal adviser to the convening authority for military commissions, said on Monday.
Yesterday, Army Col. Stephen David, the chief defense lawyer for military commissions, said he has appointed only one military lawyer so far to represent Mohammed al-Qahtani, who was not held in CIA custody. But he is trying to find five more defense counsels to represent the others, who were held by the CIA; getting them will nearly double the size of his office.
Civilian attorneys have not yet been appointed to represent, at the forthcoming trial, the five who were held in CIA custody. The American Bar Association, which the Pentagon had said would help arrange such representation, has refused to participate because it objects to the trial procedures. Those appointed must obtain security clearances and sign highly restrictive agreements barring them from discussing anything their clients say.
"It could take months and months to just go over the classified information," David said. He added that there are numerous logistical and legal hurdles and that there will probably be challenges to the untested process itself. "Everything is magnified. You're not growing the garden in northern Indiana; you're growing the garden on the moon. There's no perspective."
David said it is unclear what will happen if detainees choose to forgo legal representation. He acknowledged that it is inevitable that torture will be a central issue for judges to consider.
"I don't know how you avoid the waterboarding issue," David said. "I don't know how, once that occurs, you ever avoid that issue. I don't know how you prevent defense counsel from probing into that. I don't know how you ever rehabilitate waterboarding or how you rehabilitate torture, whether it's your client or others saying things against your client."
All mail from the lawyers to the detainees and from the detainees to their attorneys is screened by a Defense Department Privilege Team, whose job it is to stop anything the team determines not to be "legal mail."
Mickum said he is concerned that he cannot share any classified information about his client with other lawyers who have clearances. "Not being able to talk to each other will do away with a means we found earlier helped us determine what was true or false," he said.