military counsel if the latter is “reasonably available”, i.e. if he or she has already been assigned to the Office of the Military Commissions to carry out defence work at the time of the request.981 In general, an accused is also entitled to be assisted by a civilian attorney if he or she is provided at no costs to the government.982 In death penalty cases, a defendant has the right to be represented by “at least one additional counsel who is learned in applicable law relating to capital cases” (“learned counsel”).983 This learned counsel may be a civilian.984 Both military and civilian defence counsel must fulfil a number of criteria of eligibility to defend an accused before military commissions. For example, a civilian attorney has to be a US citizen with at least a SECRET clearance, membership in a state or territorial bar and no disciplinary record.985 Provisions on the attorney-client privilege are included in the MCRE.986 393. The MCA 2009 states that “the fairness and effectiveness of the military commissions system (…) will depend to a significant degree on the adequacy of defense counsel and associated resources for individuals accused, particularly in the case of capital cases”, and that “defense counsel in military commission cases, particularly in capital cases, (…) should be fully resourced”.987 394. Pursuant to the MCA 2009, any accused has the right “to present evidence in [his] defense, to cross-examine the witnesses who testify against [him], and to examine and respond to evidence admitted against [him] on the issue of guilt or innocence and for sentencing”.988 Contrary to rules generally applicable in courts-martial, the MCA 2009 does not guarantee that the defence and prosecution have an equal opportunity to obtain witnesses and other evidence.989 Rather, it stipulates that defence counsel is to be afforded a “reasonable opportunity”, which is to be comparable to the opportunity given to criminal defendants in federal courts.990 Both parties are to have an “adequate opportunity to prepare [their] case and no party may unreasonably impede the access of another party to a witness or evidence”.991 395. With regards to access to evidence more specifically, the MCA specifies that any exculpatory evidence which is “known or reasonably should be known” to any prosecutor 981 MCA 2009, § 949c(b)(2); RMC, Rule 506(a) and (c)(1). RMC, Rule 506(a). 983 RMC, Rule 506(b). 984 Ibid. 985 MCA 2009, § 949c(b)(3); RMC, Rule 502(d)(3). 986 MCRE, Rule 502: “(a) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client, (1) between the client or the client’s representative and the lawyer or the lawyer’s representative, (2) between the lawyer and the lawyer’s representative, (3) by the client or the client’s lawyer to a lawyer representing another in a matter of common interest, (4) between representatives of the client or between the client and a representative of the client, or (5) between lawyers representing the client. (…) (b) (…)(4) A communication is “confidential” if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.” 987 MCA 2009, Sec.1807. 988 MCA 2009, § 949a(b)(2)(A). 989 Elsea, “The Military Commissions Act of 2009”, op. cit., note 621, p. 26, referring to 10 U.S.C. § 846 : “the trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence (…)”. 990 MCA 2009, § 949j(a); RMC, Rule 703. 991 RMC, Rule 701(j). 982 172