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Civilian defense attorneys at Guantanamo are select group

When I write or talk about being a criminal defense attorney, I’m often asked whether I would defend Osama bin Laden.

Assuming bin Laden is treated the same as his recently convicted driver and is held in Guantanamo Bay, Cuba, and brought before a military commission, much of the path that I would need to take has been blazed for me already.

I have the utmost respect for retired Navy Lt. Cmdr. Charles Swift, a professor at Emory Law School, who while on active duty led the defense of bin Laden’s driver, and stayed on the defense team after he retired without pay.

He also enlisted the help of two outstanding lawyers from the law firm of Perkins Coie out of Seattle — Harry Schneider and Joe McMillan — to help at no cost. (They normally command almost $600 per hour for legal work).

I needed to look at how they became civilian defense attorneys in front of a military commission before I could say whether I would represent bin Laden.

Anybody who has been to Guantanamo lately or even watched the movie “A Few Good Men” knows that travel to Cuba is restricted. So I asked Cynthia Smith, a Defense Department spokeswoman, how a civilian attorney can get to Guantanamo.

“Assuming they are involved in a commission case ... they travel on military flights with the respective military counsel,” Smith said.

It’s important to note that military defense counsel are required before a military commission, while civilian counsel is optional, provided with the understanding that under no circumstances is the government liable for attorney fees.

Since travel didn’t seem to be a problem, I asked about food and housing. Smith told me civilian defense counsel “pay for their own food and incidental expenses.”

Civilian defense counsel are barred from staying in bachelor officer quarters or other “hotel type housing” on the base, even at their own expense. Rather, they are housed in tents or trailers, along with the detailed military defense counsel and other members of the defense team, i.e. paralegals and support personnel.

OK, so the military seems to have the logistical problems resolved for civilian defense counsel. But what else does a lawyer need to do in order to be Osama bin Laden’s attorney?

Well, as anyone in uniform knows, the military has a policy on how to do almost anything, including how to be a civilian defense attorney before the military commissions in Cuba.

Defense Department Military Commission Instruction No. 5, dated April 30, 2003, explains in great detail what a civilian attorney must do before being “prequalified” to serve as a defense attorney in Cuba.

So, how much competition would I have to be bin Laden’s attorney, assuming that I fill out the application correctly?

“Approximately 60 civilian attorneys” are prequalified by the military, Smith said.

I was thinking that my odds were not very good until she explained further: “This number represents those fully qualified (application approved and security clearance approved) and those conditionally qualified (application approved but no security clearance as of yet).

“I believe approximately 19 are fully qualified. The balance are either in various stages of approval or were approved under the old system and not under the new system,” she said.

I have a security clearance, so I have a one in 19 chance of being a civilian attorney for bin Laden. Not bad odds.

The final factor to consider is what the civilian defense attorneys in the bin Laden driver trial have repeatedly told the media — that in representing him, they are defending not a terrorist, but rather the rule of law and America’s core values.

Swift, Schneider and McMillan are incredible attorneys — and true American patriots who are defending the rule of law.

We should be thankful that America has people like them to ensure that our legal system works. As for me, I am a professional and would do my duty where Osama bin Laden is concerned — not as a civilian defense attorney but as a military officer who would be happy to volunteer to be his executioner, either on the battlefield or after the criminal justice system pronounces judgment on him.

The information in this column is provided for informational purposes only and is not intended to constitute legal advice. Readers are encouraged to seek the advice of an attorney or other professional when an opinion is needed.

Mathew B. Tully Esq. is a field artillery officer in the New York National Guard and a veteran of Operation Iraqi Freedom. He is also the founding partner of Tully, Rinckey and Associates (http://www.fedattorney.com), a law firm in Albany, N.Y. E-mail your legal questions to askthelawyer@militarytimes.com.