Philip D. Cave [Philip D. Cave Law Offices]: "The Military Commissions have been insufficiently transparent over the years, and this has lead to a great deal of skepticism and mistrust from the public. As I and colleagues have counseled elsewhere, we should be careful of litigation by media. (Disclosure, I know and have worked with all three – Colonel Masciola, Colonel Parrish, and LCDR Kuebler – and respect them.) Only they and the other defense counsel know the facts. More might become clear if and when Judge Parrish's order becomes public.

My prism is 30 years of military law practice under the UCMJ. Were this scenario to arise in a court-martial, Judge Parrish would be right in that he makes a trial level decision on who represents Khadr.

Under UCMJ practice an accused can ask for new counsel or counsel can seek to withdraw. The prosecution can move to deny the client's representation. A prosecution motion to recuse has been done in courts-martial when the attorney is disbarred or not licensed to practice law; or where the attorney has a conflict of interest by representing a co-accused or a prosecution witness. Fairly recently the appellate courts have addressed the issue of a civilian attorney whose fee was paid by one of the prosecution witnesses; where there is a question that the attorney violated the Ethics in Government Act, (18 US Code §207(a)(2)), see United States v. Rhoades [PDF file], 65 M.J. 393 (C.A.A.F. 2008); or where the military attorney was concurrently serving as a prosecutor in unrelated cases, see United States v. Lee, 66 M.J. 387 (C.A.A.F. 2008).

It is the client or the military judge who decides if the attorney must be released or the attorney-client relationship severed. When such an issue arises it is addressed in open court and on the record. The Air Force Court of Criminal Appeals has said that, there are only three ways an existing attorney-client relationship can be severed: consent of the accused, a judicial order, or other good cause. See United States v. Hardy, 44 M.J. 507 (A.F. Ct. Crim. App. 1996). In United States v. Murray, 20 U.S.C.M.A. 61, 42 C.M.R. 253 (1970), the Court of Military Appeals (now the Court of Appeals for the Armed Forces), held that administrative convenience did not justify severance of an attorney-client relationship. I'm not convinced that a supervisor's disagreement with case and trial strategy is sufficient reason to sever an existing relationship. (Note that the Military Commission rules of professional responsibility mimic those for military and civilian lawyers practicing in a court-martial under the UCMJ.)

Rule for Military Commissions 505(d)(B) seems to partially support Judge Parrish's approach.

(B) After formation of attorney-client relationship. After an attorney-client relationship has been formed between the accused and detailed defense counsel or associate or assistant defense counsel, an authority competent to detail such counsel may excuse or change such counsel only:

(i) Upon request of the accused or application for withdrawal by such counsel under R.M.C. 506(b); or

(ii) For other good cause shown on the record.

Rules 505 or 506 do not address the current scenario – only a client's request to change counsel or counsel's request to withdraw. It would seem proper therefore to advert to the Rules for Courts-Martial and UCMJ practice as a suitable analogy, framework, or guide-post as I have laid out above.

The military judge usually will query the accused about his counsel desires on the record when a counsel "conflict" issue comes up. The judge would probably readvise, as he did at the start of the trial, the accused about what his counsel rights are. The judge will have the accused acknowledge his understanding. The judge will then query if he desires to retain counsel or seek new counsel. Should it be the counsel who are seeking to withdraw, they will be asked to state their reasons. The accused will be asked if he consents. It would seem that the judge could do this sua sponte under the circumstances here, or at the request of Khadr and his counsel. I am unaware of any similar situation in a court-martial under the UCMJ, but it's always possible it has happened."