Death Penalty Poses Problems for Military Commission Trials

After the Pentagon announced earlier this year that it would seek the death penalty for six Guantánamo Bay detainees, little progress has been made in the case. According to The American Lawyer, the military commissions have had difficulties in finding qualified and willing defense attorneys to represent the six men who are accused of planning the September 11 attacks. Tom Fleener, a former military lawyer, said, “I don’t believe any [of the 15 attorneys in the office of the chief defense counsel] would meet the standards of the American Bar Association for being lead counsel in a death case.”

While civilian lawyers may volunteer to assist the defense, many find the process constrained and costly. The government does not provide financial compensation to volunteer lawyers, even for costs incurred while seeking evidence abroad. Likewise, civilian counsel is not permitted to meet with their clients without video surveillance, and they must obtain security clearance before doing so. The government also has significant liberties in terms of gathering evidence. It may present hearsay evidence as well as evidence obtained by torture as long as the evidence is later obtained in a less coercive manner. The government is not required to turn over exculpatory information.

The American Bar Association expressed their concerns in a letter sent to President Bush. ABA president William Neukom wrote that “the military commission system at Guantánamo does not adhere to established principles of due process fundamental to our nation’s concept of justice…. We do not believe military commission trials can or will provide the level of fairness that is consistent with our values and essential to our credibility in the rest of the world.”