Clinic Releases Analysis on the Right of Access to Counsel in the Context of Counterterrorism

The Allard K. Lowenstein International Human Rights Law Clinic at Yale Law School has released an analysis of the right of access to counsel in the context of counterterrorism, mapping violations of the right in various settings around the world to illustrate the importance of access to counsel as well as the magnitude of the threats it currently faces. The Clinic prepared the memorandum for Fionnuala Ní Aoláin, the United Nations (UN) Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.

“The analysis provided on the right of access to counsel in context of counterterrorism will help me address this critical issue in the context of ensuring fair trial for persons charged with terrorism, extremism or violent extremism around the globe,” said Ní Aoláin. “Given the opaque and imprecise nature of counterterrorism legislation in so many countries, the right to have counsel present is an indispensable safety net for individuals. It has not had the attention it deserves and I hope that by building on the excellent research provided by the Lowenstein Clinic in this report I will be well placed to help remedy that deficit.”

The right of access to counsel is an internationally recognized human right that guarantees legal representation to defendants navigating punitive legal processes. The right has been interpreted not only to prohibit states from completely denying a defendant access to a lawyer, but also to require freedom from interference in legal representation, the defendant’s right to choose their counsel, prompt access to counsel, and private and confidential attorney-client meetings and communications.

Governments often use terrorism as a pretext to target marginalized groups and suppress political dissent, according to the report. States may invoke national security to deny or undermine access to counsel in a wide range of contexts, from regular criminal and civil proceedings to states of emergency and situations of armed conflict.

“As we examined contemporary State practices, we found numerous instances of incommunicado detention without access to counsel being used as a tactic to suppress critics of the State,” said Clinic student and coauthor Megan Pearson ’21. “The widespread arrest and incommunicado detention of journalists, ostensibly for terrorist and cyber offenses, is a troubling example.”

The Clinic has seen firsthand the impact of restrictions on access to counsel for persons accused of terrorism. The Clinic represented three men, Sa’id Jamaluddin, Abdul Fatah, and Musa Akhmadjanov, whom the United States seized as alleged “enemy combatants” and held at Bagram Air Base in Afghanistan. Bagram was a primary site of the United States’ unlawful torture and rendition program, and U.S. officials held the three men incommunicado for more than three years. When the government of Afghanistan took over Bagram in 2012, it continued the U.S. policy of denying access to counsel. In 2015, the Clinic learned that Abdul, Sa’id and Musa were at immediate risk of being forcibly returned to their home countries of Uzbekistan and Tajikistan, both notorious for their abusive treatment of terrorism suspects. The Clinic attempted to intervene but ultimately was unable to secure the men’s release.

“The refusal to permit our clients access to counsel — first by the United States and then by Afghanistan — was part of a larger program of torture and impunity,” observed Laith Aqel ’20, Clinic member and coauthor. “Afghan officials literally snuck Abdul, Sa’id and Musa out of the country, even though officials knew that the men had local and international lawyers desperate to contact them. To this day, we do not know if they are alive or dead.”

Denial of access to counsel also takes less extreme, though no less invidious forms, according to the report. States regularly undermine the right of access to counsel by surveilling attorney-client contacts, and many states, such as the United Kingdom, use secret evidence. Also discussed in the analysis are States’ attacks against lawyers to prevent them from representing clients accused of extremism and terrorism. For example, in Tajikistan, the government has taken over the legal accreditation system, leaving only State-approved lawyers to represent its own political opponents in State-driven criminal prosecutions.

“It was incredibly alarming to see how states flagrantly abuse the broad categories of ‘national security’ and ‘extremism’ to impede the rule of law,” said Sofea Dil, Clinic member and co-author. “Targeting lawyers has been a troublingly effective tool to suppress opposition movements and, ultimately, democracy.”

The memorandum was drafted by Laith Aqel ’20, Sofea Dil ’21, Megan Pearson ’21, and Jessica Tueller ’21, under the supervision of Hope Metcalf, Clinical Lecturer in Law and Executive Director of the Orville H. Schell, Jr. Center for International Human Rights, and Ryan Thoreson ’14, Robert M. Cover-Allard K. Lowenstein Fellow in International Human Rights at Yale Law School.

The Allard K. Lowenstein International Human Rights Law Clinic is a legal clinic at Yale Law School that undertakes projects on behalf of human rights organizations and individual victims of human rights abuses. The goals of the Clinic are to provide students with practical experience that reflects the range of activities in which lawyers engage to promote respect for human rights, to help students build the basic knowledge and skills necessary to be effective human rights advocates, and to contribute to efforts to protect human rights through assistance to appropriate organizations and individual clients.