The right to counsel maintains an uneasy relationship with the demands of trials for violations of the laws of war. The convenors of this Symposium asked me to share some personal reflections of how the right to counsel operated during the five years I was challenging President George W. Bush's military order setting up these trials at the naval base at Guantanamo Bay. The answer is: surprisingly well. While the position of the United States Government attempted at times to undercut Gideon v. Wainwright's (1) right-to-counsel guarantees, the lawyers who adopted the Guantanamo detainees' defense took Gideon as an individual obligation to do their utmost for their clients--whatever the personal and professional cost.
When we think about Gideon's effect, we should not simply look to the rules of the particular system, which may be slanted against the right to counsel. Instead, we should think about how attorneys have internalized the Gideon holding, making it something that counsel feel personally obliged to guarantee, even when the legal regime tries to undercut it. And we should also think about the latent tension in Gideon's promise that ensues when "cause lawyers" (lawyers who sign up to advance a particular set of principles) carry out their work in the context of criminal cases. After all, doing what is best for one's client may often be antithetical to that attorney's overall cause--such as the lawyer who urges her client to plead to a very low sentence or turn over evidence against another detainee, knowing that the prosecutor wants that early victory to try to legitimize an otherwise rickety system.
On November 13, 2001, President Bush promulgated a military order (2) based loosely on President Roosevelt's World War II order for the trial of the Nazi saboteurs. Its defenders pointed out immediately that, while the order authorized trials in which detainees could face the death penalty, they would be real trials, with real defense counsel. (3) The architects of the military commissions, however, did not intend for it to work in quite this way. (4)
My first inkling of the problem occurred when I tried to reach out to the recently appointed Chief Defense Counsel for the Guantanamo trials in the spring of 2003. Colonel Will Gunn was a brilliant JAG lawyer who had a sterling trajectory in the Air Force. Unlike a federal defender, neither Gunn nor his Office was listed in the phone book, and there was no public route to contact him. I ultimately obtained an email address for Gunn through a friend at the Pentagon. I reached Gunn and told him that while it was generally foolhardy to challenge a president in a time of war on a legal issue, I thought a challenge to the military order was viable. In particular, I believed that the military commissions violated separation-of-powers principles, the Uniform Code of Military Justice, and the Geneva Conventions. Gunn stopped me right there, and told me that I should not say another word to him, and instead should speak to two of his junior lawyers.
I only later learned the reason why: Gunn had been told by his civilian superiors that he did not have attorney-client privilege and that he was to report any items of interest to the General Counsel of the Department of Defense. Gunn, understandably upset with this arrangement, negotiated with the General Counsel to bring two junior JAG officers onto his staff who would have attorney-client privilege. Gunn arranged to have me meet these two, who turned out to be brilliant advocates in their own right: Lieutenant Commander Charles Swift and Lieutenant Commander Phil Sundel.
Hamdan v. Rumsfeld began that way, with a quiet meeting between two Navy JAG lawyers and me. The meeting had to occur at my Georgetown University office because the chief defense counsel for the military commissions shared the same office floor as the chief prosecutor, and shared even the same handwritten security log that tracked visitors coming in and out of the office. In that first meeting, it became clear that the architects of the military commissions had made a serious mistake: they had assumed that uniformed military lawyers would not vigorously challenge the President in a time of war on behalf of an accused terrorist. Within mere minutes, Sundel was grilling me about footnotes in my Yale Law Journal article, (5) and Swift was explaining--in simple, eloquent, and powerful words--just how important fidelity to the Geneva Conventions is from the standpoint of someone who wears the uniform.
We of course had no client at that time, but we were getting prepared to have one. The Administration had said that the commissions were finally going to be launched. We spent that summer learning everything we could about the Geneva Conventions, domestic military law, and the way the federal courts had treated war powers. And then, rather unexpectedly, our relatively academic exercise turned practical: the Supreme Court granted certiorari in Rasul v. Bush. (6)
The question presented in Rasul was whether the hundreds of detainees at Guantanamo had access to the Great Writ. Immediately, I saw deep problems. If the Supreme Court answered the question in the broadest possible way for the government, it would mean that defendants in military commissions would be relegated to the essentially nonexistent judicial review set out in President Bush's military order. (7) But if the Court adopted the Guantanamo detainees' position in the lawsuit, that would also be problematic, since that set of detainees had tried to distinguish the handful of military commission defendants from the hundreds of detainees in the general population who were not facing a military trial. In an attempt to create a compromise position, the detainees in Rasul had even gone so far to suggest that the former category, the military commission defendants, may not even have habeas rights. I wrote up a legal memo outlining the dangers and gave it to Swift and Sundel. They called me to say it was now time to get Gunn back into the conversation.
At that point, there were five lawyers plus Gunn assigned to the Office of the Chief Defense Counsel. I came to their office and gave a two-hour presentation discussing the major war powers cases. I explained that our brief could take a rather different middle road--not saying that access to the Great Writ was necessarily appropriate for the hundreds of individuals in detention at Guantanamo, but saying that it definitely was available to someone facing a massive criminal sanction (including, quite possibly, the death penalty). And I pointed out that the detainees in...