KEVIN J. BARRY, 66

Kevin J. Barry, 66; Retired Coast Guard Judge Criticized Military Commissions

Capt. Barry criticized the proposed use of military commissions to adjudicate alleged terrorism cases.
Capt. Barry criticized the proposed use of military commissions to adjudicate alleged terrorism cases. (Coast Guard Photo)
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By Patricia Sullivan
Washington Post Staff Writer
Tuesday, April 28, 2009

Kevin J. Barry, 66, a retired Coast Guard appellate judge who was a critic of the military commissions given the task of trying alleged terrorists and who fought for openness in how justice is applied in the military, died of colon cancer April 24 at his home in Chantilly.

Capt. Barry's 24 years in the Coast Guard, most of it as a lawyer and judge, gave him both authority and credibility when criticizing the system of justice. After he retired in 1990, he spoke out about its failures in public forums, represented clients in their appeals and worked to change policies that he thought violated the basic tenets of justice.

"What got him spun up was when he saw a system that he deeply believed in being used as an instrument of injustice," said Eugene Fidell, who teaches military justice courses at Yale Law School and who is president of the National Institute of Military Justice, which Capt. Barry helped found.

U.S. District Judge Royce Lamberth, a friend for 30 years, called him "probably one of the most outstanding military lawyers I ever knew in my whole career. His views carried great weight." When Lamberth was a prosecutor, he said, Capt. Barry persuaded him to give a speech on the duty of government lawyers to curb judicial activism, a speech that attracted attention when his judicial nomination came before Congress.

"When he criticized the system, careful attention was paid by Congress as well as the judicial system," Lamberth said Saturday. "I think he had a tremendous impact because his views were so well thought out, well considered and well respected."

After U.S. District Judge James Robertson in 2004 found that detainees at the Navy base at Guantanamo Bay may be prisoners of war under the Geneva Conventions and therefore entitled to the protections of international and military law, Capt. Barry hailed the decision. It "will give heart to all who think the rule of law should apply in the Afghanistan conflict," he told The Washington Post at the time, adding that the war on terrorism is the first U.S. war since the Geneva Conventions' adoption in 1949 in which the government has not accorded POW status to enemy fighters.

In 2002, he told an American Bar Association panel that he and the Bar Association of the District of Columbia "believe that if military commissions are going to be used, they have to be fundamentally fair. Now we didn't say due process; we said fundamentally fair, a concept understood throughout the world, and that would include the constitution of the court. . . . Problem two, they should follow courts-martial procedure. They always have. That's the standard. . . . Final point, no system of trial can be complete without some sort of appellate review that is independent of the prosecution, independent of those who exercise prosecutorial discretion. Under the president's order, this system does not have the benefit of independent judicial review. . . . This system will not be seen by the world as fundamentally fair."

He was born in New York and graduated from the Cathedral College of the Immaculate Conception in Brooklyn in 1964. After a short period studying for the priesthood, he enlisted in the Coast Guard in 1966 and served as an operations officer and navigator aboard several cutters. He was an instructor at the Coast Guard's officer candidate school and graduated in 1975 from the College of William and Mary's law school. He held a variety of legal assignments in the service until he was made the chief trial judge and appellate judge on what is now called the Coast Guard Court of Criminal Appeals. His last post before retiring was as chief of legislation at the Coast Guard's Washington headquarters.

Capt. Barry went into private law practice from 1990 to 2005, focusing on military and veterans law and providing alternative dispute-resolution services. Since 1987, he also co-owned the Paschal Lamb, a Catholic book and gift store in Fairfax.

Among his awards were the U.S. Court of Appeals for the Armed Forces Judicial Award for Public Service in 2001, the U.S. Court of Appeals for Veterans Claims Distinguished Service Award in 2002, the Judge Advocates Association Lifetime Achievement Award in 2004 and the Bar Association of the District of Columbia's Lawyer of the Year Award in 2007.

A prolific author of legal articles, he addressed controversial cases, the need to modernize court manuals and the Uniform Code of Military Justice, and the legality and efficacy of military commissions. He also wrote, during his 11-year battle with cancer, numerous articles about the spiritual aspect of the disease, which were published in Catholic journals.

Survivors include his wife of 42 years, Roslyn Larkin Barry of Chantilly; three children, Michael Francis Barry of San Antonio, Daniel Kevin Barry of Alexandria and Melissa Rose Javier-Barry of Washington; a brother; two sisters; and three grandchildren.


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