JURIST Guest Columnist Victor Hansen
of New England School of Law says that Department of Defense approval of military defense counsel's participation in Ahmed Khalfan Ghailani's federal court terrorism case would underline the Department's core commitment to the rule of law, and would show that military lawyers are capable of providing competent legal representation to anyone, regardless of who they are or what they may have done...
he first terrorist suspect held at Guantanamo, Ahmed Khalfan Ghailani, was recently transferred to federal district court in New York to face charges for his alleged role in the embassy bombings in Tanzania. The move received a great deal of media attention as a test case for the Obama Administration’s plan to close down the detention facility at Guantanamo and to prosecute at least some of the terrorist suspects in U.S. federal court, rather then by military commission. A development in the Ghailani case that received less attention was Ghailani's request to keep his appointed military defense counsel to represent him in federal court. The federal district judge ruled that Ghailani could keep his military counsel if the Department of Defense approved the request.
Representation of terrorist suspects by military defense counsel in federal district court is without modern precedent. While military defense lawyers occasionally represent military members in federal court, those situations typically arise when the military member is being criminally investigated or sued civilly for actions taken in his or her official capacity. There are no modern precedents for military defense counsel representing a suspected terrorist being prosecuted in federal district court. Because of this lack of precedent and the possible concern that if a request were granted in this case it would open the floodgates for other Guantanamo detainees to make similar requests, the inclination of Department of Defense officials may be to deny the request. More careful consideration, however, is warranted before Department of Defense officials act on such an inclination.
Since their initial inception by the Bush administration to try terrorist suspects, the military commissions process has been subjected to widespread criticism, both domestically and by our friends and allies abroad. The Obama administration’s recent announcement that it is considering using a revised version of the military commissions for some of the detainees at Guantanamo means that this criticism and concern is likely to continue. Much of the criticism has centered on the lack of fairness in the procedures to prosecute these detainees. Other criticism has focused on the lack of legal authority for these military commissions, the ex post facto
nature of the offenses which are being prosecuted, and the concern that the military commissions process is not in compliance with our treaty and other international obligations.
The recent request by Ahmed Khalfan Ghailani that his military lawyers remain on his case in federal district court is another opportunity for the military to demonstrate the quality of its service members and the culture of respect for the rule of law that exists in the military. It is quite remarkable to consider that Mr. Ghailani would ask members of the military that has detained him for the past several years without trial, to now represent him in federal court. Granting Mr. Ghailani’s request would be akin to granting him the right that any service member has to make a by-name request for a military attorney to represent him or her. These requests are known as Individual Military Counsel (IMC) requests, and they are routinely granted if the requested counsel is available and not otherwise conflicted.
If the military were to treat Mr. Ghailani’s request as an IMC request, it is quite possible that the analysis would lead to the conclusion that his military counsel can continue to represent him in federal district court on these charges. In doing so, the military would send a strong message that one of its core institutional values is respect for the rule of law, and that military lawyers are capable of providing competent legal representation to anyone, regardless of who they are or what they may have done. The Department of Defense should carefully consider the powerful example and message of such a decision. Victor Hansen was a lieutenant colonel in the United States Army JAG Corps and currently teaches at New England School of Law