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