Left Out in the Cold: The Case for a Learned Counsel Requirement in the Military

摘要

Under the Military Commissions Act of 2009 (MCA), Congress granted defendants facing the death penalty the right to a counsel learned in capital law. Congress's intent in creating a "learned counsel" position was to ensure the fairness and effectiveness of the commissions.1 This learned counsel requirement was neither created ex nihilo nor is it unique to military commissions. As outlined below, the federal system and an overwhelming majority of states that authorize the death sentence have a similar requirement.2 Surprisingly, a servicemember facing the death penalty has no such right.