We often hear about the frustrations involved in the detainee cases at Guantanamo Bay--mainly from the point of view of the detainees, and, many times, family members and victims of the detainees' crimes. We rarely get insight into the defense counsel themselves and their efforts on behalf of their clients.
A recent Fox News article highlights the "Catch-22" nature of the uncertainty that hangs over the 9/11 defendants' attorneys. Although the decision to try KSM and company in civilian federal court is now nearly 1.5 years behind us, the defendants remain at Guantanamo Bay, and we have yet to see new charges filed after the determination that they would no longer face military commissions. So, that means the co-accuseds continue to retain their appointed defense counsel who represented them when they faced military commission charges. Realizing the vast amount of preparation needed in order to properly defend what will likely be capital cases, the defense counsel have sought resources in order to do just that.
This usually routine process of requesting travel money, experts, or other preparation necessities has become a huge problem for the 9/11 defense attorneys, as DoD views the cases as DoJ matters now, despite DoD retaining physical control over the detainees. Of course, with no civilian charges pending, DoJ isn't eager to spend its finite resources for these cases.
To complicate matters further, even if the uniformed defense counsel receive the resources needed to prepare their cases for military commissions, they will almost certainly not represent KSM or his co-accuseds if the case does, indeed, end up in civilian court. That is because the TJAGs (and SJA to the Commandant of the Marine Corps) have policies not to allow their JAGs to continue to represent clients once the clients are outside the military justice jurisdiction. In fact, when Ghailani attempted to keep his JAG lawyers after his transfer to the Southern District of New York, Judge Kaplan reaffirmed the TJAGs' prerogative to sever the attorney-client relationship when cases moved from the military commissions to the federal district courts. (Of interest: One of Ghailani's attorneys (now-Col Jeffrey Colwell) at issue in the litigation is now the chief defense counsel for the commissions.)
Meanwhile, these attorneys have clients to represent. On top of the protective order described in this blog earlier this week, the question increasingly has become one of how can you be diligent for your clients if your hands are tied? Just a couple more examples of the need to make decisions about the future trajectory of these cases ASAP, in the interests of all involved.