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

See all articles by Fionnuala D. Ni Aolain

Fionnuala D. Ni Aolain

University of Minnesota Law School; The Queens University of Belfast

Date Written: March 19, 2018

Abstract

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’ offen​s​es, 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 defen​s​e counsel, the unique role of military defen​s​e 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, Defen​s​e Lawyers, Torture, Guantanamo, Due Process Rights, National Security

Suggested Citation

Ni Aolain, Fionnuala D., Lawyers, Military Commissions and the Rule of Law in Democratic States (March 19, 2018). Counter-Terrorism, Constitutionalism and Miscarriages of Justice (Dr. Genevieve Lennon and Dr. Colin King, eds., Hart Publishing UK,2018, Forthcoming), Available at SSRN: https://ssrn.com/abstract=3143906

Fionnuala D. Ni Aolain (Contact Author)

University of Minnesota Law School ( email )

229 19th Ave. So.
Minneapolis, MN 55455
United States
612-624-2318 (Phone)
612-625-2011 (Fax)

The Queens University of Belfast ( email )

University Square
Belfast, County Down
Northern Ireland

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