If skeptics around the world are to believe that the terrorism suspects being held at the U.S. military facility in Guantánamo Bay, Cuba, are receiving the benefits of an impartial system of justice, the captives must have access to competent defense lawyers. No one is better equipped to engage in the intense forensic duels that these cases could produce than American criminal-defense lawyers, but will they be available? Not likely. The rules devised by the Pentagon -- the list of promises lawyers will be required to sign if they want to participate -- are so restrictive, and contrary to fairness and due process, that lawyers rightly are balking.

UNFAIR STANDARDS

Standards of evidence are unfair, they say; and there are questions about appeal procedures. Defense lawyers must get government permission before talking about the case outside the courtroom, and the government insists on eavesdropping on conversations between suspects and their lawyers. Alfred P. Carlton Jr., outgoing president of the American Bar Association, said that he, for one, couldn't sign such a list. Lawrence S. Goldman, president of the National Association of Criminal Defense Lawyers, said that he couldn't advise members to participate either.

Last week, an ABA panel recommended that the Pentagon modify the rules. Among other things, the panel objected to restrictions on civilian defense lawyers' access to information and to a requirement that lawyers pay their own expenses. Neal Sonnett, a Miami defense lawyer and principal author of the report, said he, too, could not agree to the Pentagon's conditions.

The Pentagon insists that the tribunals will be ''full and fair trials.'' But it says that security and intelligence agents must be able to listen to attorney-client conversations, even though the information won't be used against the defendant at trial. Then why listen at all? The Pentagon's assertion simply isn't believable.

The Pentagon must address the defense lawyers' concerns because they aren't mere legal pettifoggery. The right of confidentiality between lawyer and client is a bedrock principle of criminal jurisprudence, and no student leaves law school without learning a maxim coined by Justice Felix Frankfurter in McNabb vs. U.S.: ''The history of liberty has largely been the history of the observance of procedural safeguards.'' That applies both in and out of the courtroom.

JUSTICE CHALLENGED

Whisking some 660 terror suspects to be held incommunicado for months in cages on an island prison has already aroused legitimate questions around the world about the nature of American justice.

Failure to live up to our standards of fair trial in these cases would only provide more ammunition to those who say that Americans believe in liberty for themselves -- but not for others.

Copyright 1996-2003 Knight Ridder

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