Saturday, March 31, 2007
By Steven L. Taylor

As we now know, David Hicks has confessed to supporting terrorism and will serve 9 months (in addition to the five years already served at Guantanamo) in prisoner in Australia.

There is much to be said about this case and process, but let me focus on one specific issue that came to my attention yesterday: the fact that two of Hicks’ lawyers were barred from the case at the last minute.

Via WaPo: Guantanamo Plea Leaves Questions

The judge, Marine Col. Ralph Kohlmann, ordered two lawyers to leave the defense table after ruling they were not authorized to represent Hicks. One of the attorneys, Joshua Dratel, refused to sign an agreement to abide by tribunal rules, even those not yet established.

“These are the same problems that plagued the earlier commissions, that the process is ad hoc,” Dratel told the black-robed judge before leaving the defense table.

NPR’s account is as follows:

The first serious cracks in the newly minted Military Commissions Act started to appear just two hours after Hicks entered the courtroom on Monday, when the judge disqualified two of Hicks’ civilian defense attorneys.

One of the disqualified lawyers was Joshua Dratel, a well-known Manhattan criminal defense attorney. Dratel has been on Hicks case since Hicks was first charged, about three years ago.

Under the new regulations, civilian lawyers are required to sign an agreement to abide by the new tribunal rules. But the military hasn’t finished writing the rules. Dratel said he could not sign a blank check, documents that might commit him to regulations that have yet to be written.

So he withdrew from defending his client.

“It has never happened to me before,” Dratel said. “It was unprecedented, in my experience, and unfortunate. It was not lightly done.”

Human Rights Watch

Hicks’ two civilian defense counsel were prevented from representing him as his hearing got underway on March 26. The presiding judge provisionally dismissed the assistant defense counsel, stating that the government was precluded from assigning civilian government employees to represent defendants, even though military commission rules allow the Department of Justice to assign its civilian lawyers to the prosecution. The judge then removed Joshua Dratel, Hicks’ longtime civilian counsel, because he agreed to abide by all “existent” rules, but refused to agree to “all” rules for the tribunal without first knowing what those rules stated. According to the judge, this ran afoul of civilian counsel’s obligations to agree to military regulations governing representation – regulations which have not yet been issued.

Specifically, for a civilian to participate in the process, they had to sign off on the rules of the tribunal. As a general principle I can accept such a proviso, as the tribunal does not operate under the same rules as a normal court.

However, one cannot expect that counsel will sign off on rules that haven’t been written yet. This situation illustrates the ongoing incompetence in regards to the question of how to handle these detainees. This was supposed to be an exemplar of how the process would work, and yet they didn’t have all the rules figured out yet?

Again, I note, as this entire situation constantly makes me want to do: if the United States wants to be an example of democracy and justice, then we have to behave as such. We can’t simply assert the superiority of our ways of governance and then engage in rampant ad hocery in vital processes. If we wish to a) be an example, and b) convince others of the righteousness of our behavior, then we have to do far better than we have to date.

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2 Responses to “Hicks Denied Civilian Counsel Due to Incomplete rules.”

  1. Political Mavens » Hicks Denied Civilian Counsel Due to Incomplete rules. Says:

    [...] [Cross-posted from PoliBlog] [...]

  2. Ratoe Says:

    This situation illustrates the ongoing incompetence in regards to the question of how to handle these detainees. This was supposed to be an exemplar of how the process would work, and yet they didn’t have all the rules figured out yet?

    Steven, I share your frustration with these tribunals. However, I would disagree that this is an example of “ongoing incompetence.”

    This is part of a deliberate and longstanding Bush Administration policy to ignore the rule of law. That is the policy.

    From the early memos of Gonzalez unilaterally allowing the White House to opt out of the Geneva Conventions to the recent AG scandal–which, as you know, was premised on ignoring precedent and the Senate’s traditional oversight function–time and again there is a pattern on the part of the adminstration to WILLFULY DISCOUNT THE RULE OF LAW.

    Given these consistent patterns of behavior, the idea of incompetence doesn’t fly–its the administration’s policy, pure and simple.

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