Lawyers, Military Commissions and the Rule of Law in Democratic States
Counter-Terrorism, Constitutionalism and Miscarriages of Justice (Dr. Genevieve Lennon and Dr. Colin King, eds., Hart Publishing UK,2018, Forthcoming)
30 Pages Posted: 26 Mar 2018
Date Written: March 19, 2018
This chapter delves into the ongoing challenges of rule of law adherence in a counter-terrorism context with a particular focus on trial and detention as focal points of state interaction with non-state actors, and the management of conflict and terrorism through the courts. I examine the manner in which democratic states generally continue to maintain the right to counsel for suspected terrorists, even when those persons have been charged with ‘new’ offenses, detained for extended periods, and subject to trial processes that depart considerably from the general legal norms accepted in normal times. Critical to the analysis is the intersection of the retention of a formal right of access to counsel, allied with attempts to peel away its substantive content. I focus particularly on the right to counsel in exceptional courts, specifically military commissions to explore tensions and challenges and use the military commissions at Guantanamo Bay Cuba as the case-study. Issues addressed include the ethical challenges for defense counsel, the unique role of military defense counsel in the Guantanamo complex, and the broader stresses on attorney-client relationships evidenced by operating in a truly exceptional court environment for extended periods.
Keywords: Military Commissions, Defense Lawyers, Torture, Guantanamo, Due Process Rights, National Security
Suggested Citation: Suggested Citation