Published by The Lawfare Institute
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“How is my client best served?” is what Linda Moreno, a criminal defense lawyer, says about deciding between federal courts and military commissions. I think military commissions are an abomination. But as a former criminal defense lawyer, if the case against my client were strong, I would likely opt for military commissions over federal courts. That's because in military commissions, there is politics and chaos. In other words, if you're interested in a disinterested analysis of the two systems, don't ask a criminal defense lawyer. Because her function is not to do justice, or to find the truth, or even to chose the process that is most inclined to respect the constitution and international law. It is to get the result that most suits the desire of the client. And that's the way it should be. And that's also why both human rights advocates and many well-informed experts on national security who do not represent individuals charged with terrorism offenses, including from the military, support federal courts over military commissions. We are not biased in favor of a client. We do not seek the forum that is most likely to make the accused the least unhappy. We do favor fair process over chaos and justice over the trappings of justice.Normative judgments aside, Rona here makes a good point--one with which I agree. Indeed, Rona here is placing a different spin on precisely the point I was trying to bring out in publishing Moreno's comments. My point in highlighting the relative solicitude for commission rules among defense lawyers like Moreno and David Remes is not to suggest either that they are disinterested observers or that commissions are desirable because defense law1yers don't dislike them as much as human rights activists do. My point, rather, is that the critique of commissions tends to conflate two related issues that are ultimately distinct. The first is whether they offer a fair, reasonable forum of which America can be proud and that does American justice credit. The second is whether they are likely to offer individual detainees in individual cases a better or worse forum to present their defenses than will federal courts. These questions are not the same, and the result is that those (like Remes and Moreno) who have to think about protecting actual clients will tend to come to a more nuanced view of the matter than those (like Rona) who are thinking systemically. Rona gives this point a different gloss, but he's ultimately saying the same thing.