Background Briefing

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Right to Counsel of Choice

The military commission instructions provide for the mandatory appointment of a military defense counsel for the defendant. The defendant may also retain, at his own expense, private counsel, but military counsel would remain assigned to the defense team. As the instructions state, the “[a]ccused must be represented at all relevant times” by military defense counsel.48

The right to counsel of choice is an integral component of a fair trial – one recognized in international and U.S. law, including the rules for courts-martial. Nevertheless, the Department of Defense instructions for military commissions violate this fundamental right by requiring the defendant to accept a military lawyer and by denying the defendant the right to either represent himself or to be represented solely by private counsel.49

In the United States, low-income defendants who cannot afford to retain their own private counsel as a practical matter must accept lawyers assigned to them by a public defender or legal services organizations. Yet these lawyers are independent of the government. In the case of the military commissions, however, the defendants will be compelled to conduct a defense with counsel provided by, and under the ultimate authority of, the branch of government that is prosecuting and judging them.

Human Rights Watch does not question the ability or willingness of military defense lawyers to represent zealously and competently anyone brought to trial before the military commissions. Those appointed have to date acted as ardent advocates on behalf of their clients. But there is no lawful basis for denying a defendant tried before military commissions the ability of conducting a defense without the participation of military defense lawyers.50 The ability to represent oneself or to be represented solely by private counsel takes on added significance in the context of non-U.S. citizens who were taken into custody in Afghanistan or other countries and held as military detainees at Guantánamo. For reasons of culture, personal history, language and the conditions of their imprisonment, many of those detainees may never fully trust or cooperate with U.S. military counsel assigned to them. Such trust and cooperation are, of course, vital to an effective defense.

Forcing military defense counsel on the accused is not the only way to balance the right to counsel with protection of classified information. For example, the Department of Defense could permit civilian counsel to have access to classified documents subject to serious penalties if they in fact divulge protected information. Both civilian courts and courts martial can impose penalties for violating court orders to keep information confidential. Sensitive information can be protected by providing for such penalties in the commission rules. Moreover, existing rules of professional conduct preclude violation of confidentiality orders. The Department of Defense could also choose to use the procedures specified in the Classified Information Procedures Act51 that balance the need to protect classified information and the right to a full and fair defense.



[48] MCO No. 1, 4(C)(4). The defendant would have the right to request a different military counsel.

[49] Article 14 of the ICCPR provides that everyone charged with a criminal offense shall have the right “to communicate with counsel of his own choosing.” The Human Rights Committee has interpreted this to include a right of persons to defend themselves. See Human Rights Committee, Hill and Hill v. Spain (526/1993).

[50] Persons tried by U.S. courts-martial may conduct their defense pro se or proceed solely with civilian counsel if they so choose.

[51] Classified Information Procedures Act, PL 96-456, 96th Congress, Act of 15 Oct. 1980 - 94 Stat. 2025, 18 USC Appendix, as amended by Pub. L. 100-690, Title VII, Sec. 7020(G), Nov. 18, 1988, 102 Stat. 4396, available at http://www.fas.org/irp/offdocs/laws/pl096456.htm.


<<previous  |  index  |  next>>July 2005