Chapter4 Access to Justice | 99
3.
Right to legal representation
238. The 2009 MCA guarantees detainees military lawyers at Government expense or
gives them the option of hiring civilian lawyers who meet specific qualifications.
When the detainee opts for a civilian counsel, the detailed military counsel serves as
associate counsel. 283 The MCA also provides the right to self-representation, in
which case the detailed counsel serves as “standby counsel” and may be required to
be present during proceedings.
239. Among the improvements included in the 2009 MCA is the requirement of
experienced capital defense attorneys in death penalty cases and more resources
for defense counsel. Counsel is provided free of charge by the Office of the Chief
Defense Counsel. The 2009 MCA includes the right to be represented “to the
greatest extent practicable, by at least one additional counsel who is learned in
applicable law relating to capital cases,” when any of the charges are capital. 284
Therefore, detainees facing a possible death sentence would be entitled to two
attorneys at Government expense. The IACHR notes that this right is not accorded
to service members in the military justice. 285
240. Further, an amendment introduced by the 2009 MCA provides the accused an
opportunity to request a specific military lawyer to act as counsel, if the lawyer is
reasonably available. The accused may also request a replacement counsel from the
Chief Defense Counsel if he believes the detailed counsel has been ineffective or if he
is otherwise dissatisfied with the assigned counsel.
241. Despite these positive developments, the IACHR notes that the Guantanamo
detainees’ right to legal representation still faces many important challenges. In
December 2011, the then Joint Task Force Commander at Guantanamo issued two
orders establishing that any confidential writings between clients and attorneys had
to go through a special privileged review team of law enforcement, intelligence, and
security personnel that report to him. Since that date, defense counsel have
allegedly not been able to engage in confidential communications with their clients
at Guantanamo Bay. Reports indicate that these orders were intended to control
what is known as information contraband. The orders directed counsel that certain
topics were prohibited in conversation with their clients, such as historical
perspective on jihad, the status of other detainees, details about U.S. personnel who
may have tortured or abused the prisoners, and current conditions of confinement.
These information contraband provisions and the lack of confidential attorneyclient conversations are currently the object of litigation before the military
commissions. 286
283
284
285
286
MCA 2009, 10 U.S.C. § 949(c)(b).
MCA 2009, 10 U.S.C. § 949a.(b)(2)(c)(ii).
IAHCR, Expert Meeting on the situation of detainees held at the U.S. Naval Base at Guantanamo Bay,
Washington DC, October 3, 2013.
IAHCR, Expert Meeting on the situation of detainees held at the U.S. Naval Base at Guantanamo Bay,
Washington DC, October 3, 2013.
Inter-American Commission on Human Rights | IACHR
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