Washington, DC (January 13, 2012) – The National Association of Criminal Defense Lawyers (NACDL) fully supports Military Commission Chief Defense Counsel Col. Jeffrey P. Colwell’s directive today that defense lawyers under his command cease written communications with their clients on grounds that the order compels them to unlawfully reveal information related to representation of their clients in violation of the rules of professional conduct. Defense counsel under Colwell’s command represent detainees at Guantanamo Bay, Cuba, in military commission proceedings.
The attorney client privilege is the cornerstone of our adversarial system of criminal justice, and any system that fails to keep this value inviolate will inevitably fail to do justice. For this reason, NACDL is deeply concerned about the December 27 Joint Task Force order directing defense counsel to submit written communications with their clients to a so-called “privilege team.”
NACDL reiterates its position adopted unanimously by the Board of Directors on August 2, 2003, that “it is unethical for a criminal defense lawyer to represent a person accused before these military commissions [where] the conditions imposed upon defense counsel before these commissions make it impossible for counsel to provide adequate or ethical representation. Defense counsel cannot contract away his or her client’s rights, including the right to zealous advocacy, before a military commission[.]” NACDL Ethical Advisory Opinion 03-04 at 1.
Joint Task Force Commander RADM D.B. Woods’ “Order Governing Written Communications Management for Detainees Involved in Military Commissions” dated Dec. 27, 2011 would force defense counsel to “contract away” the client’s right to privileged communications with his counsel, which a lawyer – any lawyer – cannot do.
NACDL President Lisa Wayne, who has referred the matter to the association’s Ethics Advisory Committee, lauded Col. Colwell’s ethics and integrity, stating, “Colonel Colwell’s position reminds us of our role as criminal defense lawyers, which is to steadfastly resist efforts to chip away at the foundations of our adversarial system, even when institutional or other factors make defense counsel’s positions difficult or unpopular.”
While a new opinion from NACDL’s Ethics Advisory Committee is pending, the association has condemned past efforts to interfere with the attorney-client relationship based on specious national security, or any other, grounds. NACDL’s Military Law Committee Co-Chairs, Jack Zimmermann and Donald Rehkopf, noted that “efforts to enforce the joint task force order will cast further doubt on the military commissions’ capacity to adjudicate detainee cases fairly.”
A copy of Col. Colwell’s memorandum for Guantanamo detainee counsel is posted on NACDL’s website here.
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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.