New York Times
December 28, 2001
Just Who Would Want to Defend Suspects Before a Tribunal? Probably Plenty
By KATHARINE Q. SEELYE
WASHINGTON -- As Pentagon officials finish assembling a draft of the rules that will govern military tribunals, there is no shortage of defense lawyers willing, if not eager, to step in on behalf of anyone accused of terrorism who might be tried before them.
"My wife says it would be unacceptable, but I disagree," said Charles W. Gittins, a Virginia defense lawyer who specializes in military cases.
Mr. Gittins's clients have included Cmdr. Scott D. Waddle, who was stripped of his command and reprimanded after his submarine sank the Japanese fishing vessel Ehime Maru earlier this year, and Gene C. McKinney, the sergeant major of the Army who in 1998 was convicted on one count of obstructing justice in a sexual harassment case, but acquitted of 18 other related charges.
"My wife thinks I would be incorrectly viewed as being in league with the terrorists and that if I did too good a job, people might take action against me," Mr. Gittins said. "But if you don't do a good enough job, you might have the terrorists come after you."
In any case, he said, he would feel obligated to mount a vigorous defense.
"These are the cases where the law expects you to jump in and do the job," Mr. Gittins said.
David P. Baugh, former president of the Virginia College of Criminal Defense Attorneys and the Richmond Criminal Bar, said that it was exciting to represent someone who was "despised by everyone else" and that such cases had inherent drama.
"It's a `High Noon' standing-up against the vigilantes," Mr. Baugh said. "It's really putting the system to work."
Stephen Gillers, professor of legal ethics at New York University Law School, noted that to certain lawyers, such cases held undeniable appeal.
"There are people who see it as an opportunity for very high-profile activity," Mr. Gillers said. "And there are people who firmly believe in the importance of a vigorous defense, even for the person accused of the most awful offenses. There will be more than enough lawyers in that category to go around."
Pentagon officials said today that the draft rules were being finished and would be forwarded to Donald H. Rumsfeld, the secretary of defense, for his approval.
The need for rules has become more pressing as the United States accumulates prisoners in Afghanistan, some of whom Vice President Dick Cheney has said are obvious candidates for military tribunals.
The regulations will govern which lawyers might represent the defendants and under what rules they might conduct a defense.
Under the draft regulations, each defendant is to have a military lawyer assigned to him but would also be able to hire civilian lawyers. That could open a way for the government to share classified information, by giving it only to the military lawyer.
Mr. Baugh said that the pool of civilian lawyers capable of handling such a case — extremely complex, involving the death penalty and possibly requiring a security clearance — was relatively small.
Paraphrasing an old football coach, Mr. Baugh said of the lawyers who would be qualified to defend a suspected terrorist: "They are not in a class by themselves, but it don't take long to call the roll."
Already, three lawyers who represented Sheik Omar Abdel Rahman, the blind Egyptian cleric convicted in 1995 in a terrorist plot to blow up New York City landmarks, have said they are ready to represent his son Ahmed, who is believed to have been captured in Afghanistan. They include Ramsey Clark, a former United States attorney general.
If defendants in a military tribunal decide to have civilian counsel in addition to the military lawyers assigned to them, American taxpayers might pay the legal bills. It was initially unclear, however, whether the draft regulations addressed that issue.
Lt. Col. H. Wayne Elliott, who is retired after 20 years as an Army lawyer, wrote a 500-page dissertation on military tribunals that Pentagon officials consulted as they drafted tribunal specifications.
Colonel Elliott recalled that after World War II, members of the Nazi high command chose their own lawyers at Nuremberg, and that all were German. But in many of the hundreds of lower-level cases tried by the United States in tribunals, "almost every one had an American military lawyer, taken from the JAG corps," he said, referring to the judge advocate general corps, the Navy's legal division, "or a lawyer who was infantry."
In the Pacific, Colonel Elliott said, members of the Japanese high command had Japanese lawyers but were also assigned American military lawyers to guide them through the allied justice system.
Colonel Elliott said the American lawyers provided "vigorous defenses" for their clients, which partly explains why in Germany and Japan the acquittal rates were a relatively high 15 percent, compared with the 7 percent rate in federal courts. Others say the acquittal rate was comparatively high in tribunals because the cases were not screened, as they are in federal court.
In all the World War II cases, Colonel Elliott said, the American government paid the bill. In the terrorist cases, the United States could pay the defense bill, too, because it has frozen the assets of the Qaeda network, for whom the military tribunals are intended.
As for fees, Mr. Gillers said that in the Oklahoma City bombing cases, defense lawyers were appointed, and "the court had to promise them compensation beyond the usual meager rates because they were committing years of their lives to these endeavors." How long the tribunals could last is an open question, though some critics have suggested they might be dispensed with in a matter of days.
As far as appointing military lawyers in any terrorist tribunals, Colonel Elliott said he expected the Pentagon to do so.
"We have to be practical," he said, adding of the suspects: "These are dangerous people and involved with a dangerous cabal of murderers and conspirators, and everyone at the trial will be at some risk. It won't be easy for them to find counsel of their own choice."
But, he added, "you will find people willing to defend these people just for the book rights."
And for many lawyers, Colonel Elliott said, representing suspects in such difficult cases is a badge of honor.
"I have no doubt that if we ever get one of these guys," he said, "there will be plenty of people who are willing to come in and defend them."
Michael Tiger, the lead lawyer for Terry L. Nichols, who was convicted of conspiracy in the 1995 Oklahoma City bombing, said cases of this kind were very difficult "against an adversary such as the United States, and, of course, the stakes are very high."
But, Mr. Tiger added, "there always have been lawyers who have been willing to accept these challenges, even at great personal cost to themselves."
Some legal analysts warned that by participating in tribunals, defense lawyers would let themselves be used to foster the notion that such trials were fair, even if they were not. Mr. Tiger said that if he were defending someone accused of terrorism, his first step would be to seek to move the trial out of a military tribunal and into a civilian court.
Asked what taking on a terrorism case might do to a lawyer's reputation, Mr. Gittins said, "If you do a good job defending your client, it doesn't matter. But if you're seen as someone who rolled over for the government, or if you're too closely identified with your client, that's not good."
Mr. Gillers, of New York University, said that a lawyer who represents someone accused of terrorism "runs the risk that his or her practice will be derailed, that even the mob would not hire that lawyer."
"They'll be seen as untouchable, carrying an image with which other defendants will not want to associate," he said.
Donald Rehkopf, co-chairman of the military law committee for the National Association of Criminal Defense Lawyers, was a bit blunter.
"If a defense attorney has any career aspirations, and he's too aggressive or too defiant," Mr. Rehkopf said, "it's sayonara."
Copyright © 2001, New York Times Company. All rights reserved.
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