Time and counsel
The one issue that was addressed, if not quite resolved, this week was a motion by the defense to retain an Army officer as Noor’s counsel. After Captain Modzelewski (the presiding judge) reviewed the posture of the case, she requested Noor’s consent to consider the defense motion to retain counsel. He agreed, and she proceeded to recount the relevant facts. Army Major Amy Fitzgibbons was detailed to represent Noor more than two years ago, during a period in which she was mobilized from the Army reserve. When Major Fitzgibbons’ mobilization ended and she returned to the civilian work force, she transitioned into the pool of civilian counsel qualified to represent detainees. She filed notice to the commission that she intended to continue, with Noor’s consent, as his counsel. Now, however, she represented him as civilian, not military, counsel.
You might ask at this point: what’s the difference? Answer: Their clothes. Functionally, they’re identical. Military and civilian defense counsel have the same access to both evidence and clients, perform the same duties, have the same ethical responsibilities related to representation.
Back to our story: Several months after transitioning to the civilian defense pool, about thirty months into her continuous representation of Noor, Ms. Fitzgibbons accepted voluntary mobilization orders that sent her back into the Army, this time assigned not to represent detainees but to do capital defense work for the Army’s Trial Defense Service. The problem that led to this motion grew out of a conflict between the interests of the Trial Defense Service, for whom Major Fitzgibbons began working last month, and the interests of Noor and the military commissions, both of whom hoped she would continue to work for them. Major Fitzgibbons did not intend to resign from representation of Noor when she was mobilized this year; she wanted to continue as his attorney and likely felt an ethical responsibility to do so. But, quite understandably, her Army superiors were not entirely comfortable with loaning their new asset to the work of the military commissions, a sort of (endless?) labor that could drain the resources of even the most energetic of judge advocates.
As for Noor? According to Howard Cabot--Noor’s civilian defense counsel, a partner at Perkins Coie, and the attorney who argued this motion before the commission—Major Fitzgibbons had established an attorney-client relationship with Noor that the detainee did not want to sever and that the commission was bound to preserve. Cabot stressed the importance of continuity of counsel, cited to court-martial precedent (there is no commission precedent, alas …) in support of his position, and asked the commission to “do what’s right” to ensure Fitzgibbons was retained as Noor’s counsel.
The prosecutors' halting response to Cabot’s impassioned argument reflected their awkward position. Navy Lieutenant Commander Arthur Gaston argued that the Office of Military Commissions had no authority to order another branch of the Army – the Trial Defense Service – to release an officer for voluntary duty. The judge interrupted to point out that Chief Deputy Defense Counsel Michael Berrigan’s recently filed affidavit listed numerous instances in which Army commands had in fact consented to their judge advocates continuing to represent detainees despite being transferred out of the Office of Military Commissions. The prosecution responded by pointing out that Major Fitzgibbons took her new position with full knowledge of the potential conflict. Lieutenant Commander Gaston conceded that Noor and Fitzgibbons had an attorney-client relationship that warranted respect, but suggested that the commission could do little to preserve it, given the circumstances.
After defense counsel spoke briefly in rebuttal, the judge recessed the commission for thirty minutes and then returned with a decision. In an opinion read from the bench, she found that voluntary mobilization does not sever an attorney-client relationship and that Major Fitzgibbons accepted mobilization orders aware of her responsibility. Captain Modzelewski, however, cautioned that she could not order Fitzgibbons be detailed to the case, since she had no authority over the Trial Defense Service. She did, however, strongly recommend that Fitzgibbons’ request to continue as Noor’s counsel be accommodated by her new command. The judge closed by pointing out that even if the Trial Defense Service refused to release Fitzgibbons, she was still Noor’s attorney, implying that Fitzgibbons might have to resign from her current post if her superiors did not acquiesce.
In some ways, this hearing was an exercise in abstraction. Noor apparently wanted Fitzgibbons to continue as his attorney, the prosecution had no objection, Fitzgibbons herself wanted to continue, the judge concurred with the need for continuous representation. There was no disagreement among the parties involved in the commission. There was also no implication that Noor had suffered harm as a result of this dispute; he was well-represented at this hearing, and would continue to be in future proceedings by Mr. Cabot and Navy Lieutenant Commander Katharine Doxakis, who was the other defense counsel present at the hearing. Left unexamined were the concrete obstacles that have made representing detainees so challenging for even the most dedicated defense counsel. Could Noor in fact develop a meaningful, effective attorney-client relationship with his GITMO lawyers, given the conditions of his detention and the context of his culture, his language, his past?
Note: I wrote earlier that the defense team in this week’s hearing was two lawyers short, not just one. Noor’s team was missing not only Major Fitzgibbons, but also a Marine Corps captain who’s apparently on deployment at the moment. The issue of retaining Amy Fitzgibbons as Noor’s counsel reveals the blurriness of lines that separate civilian from military counsel and the turmoil created by the extremely long time horizons of the commissions. It also reflects the bureaucratic challenges of creating a new military-legal organization out of a Department of Defense that was not structured to support indefinite detention, permanent overseas prisons – or criminal prosecutions that last a decade.
There’s a beautiful sunset, horizontal stripes of dark and light orange, yellow, and light blue, outside the windows on the left side of the Florida Coastal Airlines plane I’m on. We’re headed north toward Fort Lauderdale and we’ll land in a few minutes. I’m looking forward to getting off the airplane and deciding which direction to walk without having someone following me, without having to bring the other NGO observers (as decent and engaging as they were!) with me to make a phone call or have breakfast. My head is spinning with awe and despair at the effort that so many people are pouring into a system of justice so contrived and so costly. I’m on my way home with a bag full of stuffed iguanas and key chains (“It don’t GITMO better than this”) for my kids. I was only there for 30 hours, but that was more than enough.