Here's more on the controversial issue of whether civilian criminal defense lawyers should refuse to participate in the Administration's planned military tribunals because the rules hamstring the defense, preventing lawyers from zealously and effectively representing those on trial. Both sides of the debate are presented. For background on the rules, go here. Our prior post on the hesitancy of defense lawyers to get involved is here.

Despite being told by the trial court judge to allow Zacarias Moussaoui to question Al Qaeda member Ramzi Binalshibh , and despite the fact that the Fourth Circuit has twice now refused to overturn that order, the Government has announced it will not comply.

The Government cites national security concerns.

Chief Judge William Wilkins, who was against rehearing the case, said the appeals court could not just rule in favor of the government because it asserts national security interests.

"Siding with the government in all cases where national security concerns are asserted would entail surrender of the independence of the judicial branch and abandonment of our sworn commitment to uphold the rule of law," he wrote.

Trial Judge Leonie Brinkema now must decide whether to dismiss the case against Moussaoui, or impose some other sanction. If the case is dismissed, Moussaoui's case will likely be transferred to a military tribunal. Moussaoui has more rights in a federal criminal trial than he will in a tribunal.

The New York Times has an excellent article outlining the hesitancy of civilian defense lawyers to participate in military tribunal proceedings .

As Lawrence Goldman, President of the National Association of Criminal Defense Lawyers (NACDL) writes in this month's Champion magazine:

"In view of the extraordinary restrictions on counsel, however, with considerable regret, we cannot advise any of our members to act as civilian counsel at Guantánamo," he wrote. "The rules regulating counsel's behavior are just too restrictive to give us any confidence that counsel will be able to act zealously and professionally."

Among the rules defense lawyers object to:

• Conversations with our clients are subject to being monitored

• Lawyers have to pay for their own transportation to and from Guantanamo, represent the accused for free, and pay for their own security clearances, estimates of which run about $2,800.00. Unlike the federal court system, the Government is not offering compensation at reduced rates, and the trials could take months. Who can afford it?

• Even with a security clearance, defense will not be entitled to see all the documents. Only the military counsel may see everything.

The Government has made two welcome changes in the rules to encourage civilian counsel to particpate. Lawyers will be allowed to confer with colleagues on their cases, and it will not be required that all legal work be done at Guantanamo.

Here's more on the rules and why lawyers are afraid the tribunals will be sham proceedings to which they should not lend legitimacy. And Calpundit reprints a chart from the new issue of the Economist (subscription only) showing the difference between the military tribunals, U.S. Criminal trials and court- martial proceedings (which use the Code of Military Justice). His comment:

This is disgraceful. Our children are going to look back on this the same way we look back on Japanese internment camps and McCarthy-era loyalty oaths.

What kind of choice is this? The Guardian reports:

The two British terrorist suspects facing a secret US military tribunal in Guantanamo Bay will be given a choice: plead guilty and accept a 20-year prison sentence, or be executed if found guilty.

American legal sources close to the process said that the prisoners' dilemma was intended to encourage maximum 'co-operation'.

A group called Fair Trials Abroad is leading the charge to have the two men returned to Britain to stand trial, where their "confessions" would be deemed involuntary and inadmissible, and where they would not face the death penalty. The group's spokesman said,

Our concern is that there will be no meaningful way of testing the evidence against these people. The US Defence Department has set itself up as prosecution, judge and defence counsel and has created the rules of trial. This is patently a kangaroo court.

The men's lawyers also cast doubt on the validity of the confessions, saying,

any confessions gathered while the men were kept without charge or access to lawyers in Bagram airbase in Afghanistan and Camp Delta in Cuba would have no status in international law and would be inadmissible in British courts.

Gareth Peirce, who acts for Moazzam Begg, said: 'Anything that any human being says or admits under threat of brutality is regarded internationally and nationally as worthless. It makes the process an abuse. Moazzam Begg had a year in Bagram airbase and then six months in Guantanamo Bay. If this treatment happened for an hour in a British police station, no evidence gathered would be admissible,' she said.

Britain's Foreign Secretary and Home Secretary are preparing to ask Secretary of State Colin Powell to repatriate the two men so they can face a trial under British law. While they're at it, how about sending Zacarias Moussaoui back to France to face a non-death penalty trial there?

Amnesty International has issued this press release , calling President Bush's decision to designate six unidentified detainees for trial by military tribunal, "another retrograde step for human rights" in the terror war.

Among its criticisms of the tribunal process are these (direct quotes):

• The Military Order is discriminatory. US nationals will not be tried by military commission, even if accused of the same offence as a foreign national. Under the Order, selected foreign nationals will receive second-class justice, in violation of international law which prohibits discriminatory treatment, including on the basis of nationality.

• The commissions would allow a lower standard of evidence than is admissible in the ordinary courts, including hearsay evidence. The Pentagon guidelines for the operation of the commissions do not expressly exclude statements extracted under coercive methods.

• The military commissions would entirely lack independence from the executive. The President has given himself or Secretary of Defence Rumsfeld (who last week appointed his Deputy, Paul Wolfowitz, to this role) the power to name who will be tried by the commissions, to appoint or to remove the members of those commissions, to pick the panel that will review convictions and sentences, and to make the final decision in any case.

• In violation of international law, there will be no right of appeal to an independent and impartial court established by law. Instead, there would be a review by a three-member panel appointed by the Deputy Secretary of Defence.

Will Bush and Rumsfeld listen?

The European Commission urged the United States on Friday to avoid applying the death penalty to six foreign captives designated by President Bush to be tried before U.S. military commissions.

The 15-nation bloc is a fierce opponent of capital punishment and the EU's executive Commission said use of the death penalty could undermine international support for the so-called U.S.-led war on terrorism.

``The death sentence cannot be applied by military courts as this would make the international coalition lose the integrity and credibility it has so far enjoyed,'' said Commission spokesman Diego de Ojeda, recalling comments by External Relations chief Chris Patten.

Reuters reports here that two British citizens are among those targeted by Bush for military trial and possible execution.

Britain's Foreign Office said Moazzam Begg and Feroz Abbasi were among six prisoners at Camp X-ray in Guantanamo Bay, Cuba, whom President Bush designated on Thursday for military trial.

....Human rights campaigners questioned whether they would receive a fair trial. "The U.S. Department of Defense will appoint the judges and prosecutors, control the defense and make up the rules of the trial," said Stephen Jakobi, Director of Fair Trials Abroad. "We have got to the point where the hallmarks of the Cuban exercise are those of a failed and cynical public relations stunt," he added.

The Mirror reports that pleas to Bush to eliminate the death penalty as an option for the British men have "fallen on deaf ears."

Is it just a coincidence that Bush makes this announcement on July 3, when Americans are embarking on a weekend long celebration of their independence and less attuned than usual to the news? No. This is the sneakiest and most secretive Administration in recent times, if not in history. We'd put nothing past them.

Col. Will Gunn, appointed to be chief defense counsel over future military tribunals, says he disagrees with some of the rules.

"It's critical that these trials be done right. It's critical that we hold true to fundamental American values," Gunn said in an interview with Reuters late on Friday. "As chief defense counsel, I have one fundamental goal: and that is responsibly to provide for zealous defense of any individuals who are brought before military commissions," the Harvard Law School graduate added.

What rules would Gunn have made differently?

Gunn singled out language permitting the Defense Department to monitor any conversations or communications between defense lawyers and defendants, which some critics have called a breach of customary attorney-client privilege.

"For instance, I would make it clear that no conversation between the defense counsel and a client can be monitored unless the government had a particularized reason for doing so ... a reason that can be clearly articulated," Gunn said.

Gunn also would have made for a fairer appeals system.

Gunn said the appeals process would be different if he had designed it. The rules do not allow for an independent judicial review of convictions or sentences. Appeals go to a military panel appointed by the Pentagon, and final review of convictions or sentences is made by Bush himself. Gunn said the traditional U.S. military justice system allows for some appeals to be heard by a civilian court.

Gunn won't be trying the cases but adminstering the system from the defense side. About ten lawyers have applied, but "no names that you would recognize."

He will assign each defendant a military defense lawyer. Defendants also have the right to hire a civilian lawyer who is a U.S. citizen, is deemed eligible to hear classified information, and agrees to conditions set by the Pentagon such as the monitoring of conversations.

The Fourth Circuit Court of Appeals has dismissed the Government's appeal of the Moussaoui trial court judge's order allowing him to interview alleged al Qaeda member Ramzi Binalshibh.

A three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Va., threw out the appeal on a technicality. It ruled that the Justice Department was premature in appealing the trial judge's order allowing Moussaoui to question Sept. 11 organizer Ramzi Binalshibh through a remote video hookup.

The appellate judges said U.S. District Judge Leonie Brinkema's order "clearly is not a final one," because Moussaoui has yet to stand trial. The judges said that appeals courts have jurisdiction only to hear appeals from final orders.

Our take: Get ready for the Government to dismiss the federal action and declare Moussaoui an enemy combatant, move him into military custody, and subject him to interrogation before providing him with a military tribunal trial at which the Government will be seeking the death penalty.

On another matter, our hosting company went down this morning for about an hour and we just got back up. We apologize for any inconvenience.

Update: The Moussaoui decision is here.

Many legal experts have declared that the rules for proposed military tribunals are unfair and stacked in favor of the prosecution.

The guidelines for the military terrorism trials allow suspects and their civilian lawyers to be barred from some proceedings, restrict defense investigations and don't allow for review by independent courts, said military law experts and human rights groups opposed to the system.

Donald Rehkopf, co-chair of the military committee of the National Association of Criminal Defense Lawyers, called the planned military commissions ``an embarrassment to democracy.''

``This is a show. It's a kangaroo court of the worst sort,'' he said, describing the rules as crafted to guarantee convictions, compel guilty pleas and make it as easy as possible to get the death penalty.

"These (rules) are fundamentally contradictory to the American tradition of a fair trial," said Michael Noone, a professor at Catholic University's law school and a retired Air Force colonel.

We agree. Among the more troubling provisions:

- One rule requires defendants to prove they were justified in taking actions the government says are war crimes. Critics say that erodes the presumption of innocence that underlies American civilian and military trials. "That's an inversion of the burden of proof," said Gary Solis, a former Marine Corps judge who teaches a course on the law of war at Georgetown University.

- Decisions by the tribunals can be appealed only to a special panel of judges appointed by the Defense Department, and then directly to the president. "Bush, through his designees, can serve as prosecutor, judge and jury, and executioner. There's no independent judicial review of verdicts," said Wendy Patten of the group Human Rights Watch.

- Defendants and their civilian lawyers may be excluded from some proceedings where secret evidence is discussed.

- Civilian defense lawyers are not paid by the government and must do their defense work from the site where the military tribunals will be held.

Grant Lattin is a retired Marine Corps lawyer who has applied to be a civilian defense attorney for the tribunals. He astutely notes, "It's difficult to get civilian attorneys willing to go to Guantanamo Bay and spend a month or longer to defend these people on your own dime."

The rules for military tribunals are accessible here.

Deputy Defense Secretary Paul Wolfowitz will be in charge of military tribunals, CNN reports. Rumsfeld has delegated his authority.

Individuals brought before the tribunals would have no right to a jury trial, no right to confront their accusers and no right to judicial review of trial procedures or sentences, which could include death.

Wolfowitz will be the one to decide who faces trial.

After the chief military prosecutor drafts charges against a detainee, Wolfowitz will have the authority to approve those charges and send the detainee to trial.

How's this for a review process.....instead of judicial review,

Wolfowitz, a review panel and Rumsfeld would examine the sentence before it went before Bush.

The Bush Administration's decision to drop a federal criminal action against Qatari student Ali Saleh Kahlah al-Marri one month before his trial, and transfer him to military custody in a South Carolina brig where he awaits a decision as to whether he will be tried in a military tribunal proceeding, marks a change in Administration policy according to Administrative officials and experts.

The move does not bode well for Zacarias Moussaoui, whom experts predict will also be declared to be an enemy combatant and removed from the federal criminal justice system.

The Administration claims the move of Mr. Marri is intended to allow them to interrogate him about al Qaeda.

Critics of the Bush administration tactics said today that they believed the decision to declare Mr. Marri an enemy combatant set a dangerous precedent and exposed inconsistencies in the administration's treatment of terrorist suspects.

By declaring Mr. Marri an enemy combatant, the administration also sends a message to other terrorist suspects now in the criminal system about what could happen if they do not cooperate with investigators, officials said.

Defense lawyers for some criminal defendants in terrorism cases in Lackawanna, N.Y., and elsewhere have complained that prosecutors used the threat of enemy combatant status to coerce pleas. Justice Department officials have denied such a tactic, saying it would be unethical. But a senior F.B.I. official said today that the Marri decision held clear implications for other terrorism suspects. "If I were in their shoes, I'd take a message from this," the official said.

....Civil liberties advocates and military law experts said they were troubled by the decision to declare Mr. Marri an enemy combatant less than a month before his trial. They said he posed no imminent threat to the United States because he had been in custody more than 18 months. "The fact that a person is removed from the framework of the federal district courts and thrust into a legal environment with few if any protections can't help but be disturbing," Eugene Fidell, president of the National Institute of Military Justice, said.

You can read the text of Bush's Executive Order declaring Mr. Marri an enemy combatant here.

An edited transcript of the June 3 closed hearing before the Fourth Circuit Court of Appeals in the Moussaoui case has been released

The Government, in arguing to overturn the trial judge's order that Moussaoui must be allowed to interview Ramzi Binalshibh because he may have evidence that would helpful to Moussaoui's defense, told the Court that Moussaoui's involvement was greater than just September 11, and that Binalshibh would do more harm than good to Moussaoui's case.

We're skeptical of the first claim. A key issue at trial will be whether Moussaoui was involved in planning or participating in 9/11 at all --as opposed to a plan to engage in different and later activities.

Second, it's not up to the Government to assess Binalshibh's value as a whole to Moussaoui's case. It's their job to turn over any evidence that shows Moussaoui may not be guilty of the charged crime, may be guilty of a lesser crime, or, and this is important, may indicate that a lesser penalty is warranted.

The Government is seeking to execute Moussaoui. That Binalshibh may have provided information that inculpates Moussaoui is irrelevant to their duty to turn over anything he said that indicates Moussaoui is either innocent of the charged crimes, guilty of a lesser offense or not deserving of the death penalty .

Once they have turned over that information, it is up to Moussaoui and his lawyers to decide whether they want to develop the information further by interviewing Binalshibh, and then, whether they want to call Binalshibh as a trial witness.

The Fourth Circuit is one of the most conservative in the nation. Thus, we are not predicting the Government will lose this appeal. But it should.