ESSAY CONTENTS I. THE GIDEON EFFECT II. GIDEON AND MIRANDA: LIBERTY, COERCION, AND AMERICAN IDENTITY III. KEEPING LAWYERS AT BAY: 9/11 AND ACCESS TO THE COURTS IV. LAWYERING WHILE HELD AT BAY V. FROM GIDEON TO 9/11: UTILITIES, USELESSNESS, AND THE HALLMARKS OF OUR DEMOCRACY [I]n any case which a person is being held he has a right to counsel.
--Robert Doumar, U.S. District Court Judge, Eastern District of Virginia, commenting at the May 29, 2002, hearing in Hamdi v. Rumsfeld
Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process.
--Justice Stevens, dissenting in 2004 in Rumsfeld v. Padilla
THE GIDEON EFFECT
What did Gideon promise, and to whom? Soon after 9/11 and some forty years after the Supreme Court's decision in Gideon v. Wainwright, (1) the federal government brought individuals alleged to be terrorists to Guantanamo Bay, to Norfolk, Virginia, and to Charleston, South Carolina. In all three sites, the government asserted the legal authority to impose an interrogation and detention system outside the purview of courts, lawyers, and rights. The Department of Defense announced in Order No. 1 in 2002 that, as the "Appointing Authority," the Department was empowered to make all decisions about process and outcome without permitting individuals recourse anywhere. (2) The Administration refused to provide lawyers, argued against judges doing so, and prevented lawyers who had been appointed by courts or retained by family from having any contact with the individuals who were their "clients." (3)
As has become familiar, national and international objections erupted. The 2003 cover of the Economist announced, "Unjust, unwise, unAmerican: Why terrorist tribunals are wrong," and displayed a blindfolded Justice, draped in Grecian robes, holding scales and sword, and seen in the cross hairs of the scope of a rifle aimed at her heart. (4) Lawyers became high-profile participants, filing cases on behalf of individuals with whom, for a period of time, the government would not permit them to communicate. While raising puzzles about what it meant for lawyers to "represent" clients, those filings opened up to public scrutiny the otherwise closed and totalizing authority of the state over detained individuals. In 2004, in Hamdi v. Rumsfeld, the Supreme Court ruled aspects of the government's system unconstitutional. (5)
The 1963 decision in Gideon v. Wainwright was part of what made the exclusion of lawyers, process, the public, and rights unsustainable, both politically and legally. (Indeed, the networks of attorneys for detainees at Guantanamo have resulted in some detainees receiving more lawyering resources than many indigent defendants in ordinary criminal proceedings.) Yet even after 2004, when the Supreme Court insisted on process for detainees and third-party participation, Gideon-esque battles continued. The government claimed that it had the power to monitor attorney-client communications, and judges acceded in part by imposing "significant limitations" on lawyer-client exchanges. (6) In 2012, Gideon's saliency--and the legal puzzles of the scope of detainees' rights to counsel and to courts--returned when the federal government argued that, aside from those with pending or proposed habeas petitions, it had authority over detainees' access to counsel.
Guantanamo detainees sit in limbo, doctrinally and literally. They are neither ordinary Gideon Sixth Amendment rights-bearers awaiting criminal prosecution, nor are they postconviction prisoners who, under current doctrine, have rights to employ counsel (albeit without state funding) (7) and rights of access to courts. (8) And most 9/11 detainees are not being subjected to military commissions, for which Congress has by statute authorized that counsel be provided. (9)
That 9/11 detainees are positioned in this legal gap is not happenstance. The government has sought to avoid the packet of rights afforded defendants in criminal prosecutions, to block public knowledge about what has transpired, and to make lawful whatever treatment is accorded. (10) That courts recognize Guantanamo detainees as entitled to lawyers is part of the Gideon effect, captured in a district judge's reaction in 2002 (quoted at the outset) that "in any case which a person is being held he has a right to counsel." (11) In 2004, the Supreme Court's confirmation of detainees' rights to file habeas petitions (12) (a holding reiterated in 2006 and in 2008 (13)) brought with it entitlements to retain and to see lawyers. Yet as contests about access to lawyers continue to erupt, (14) constitutional puzzles about the sources and scope of detainees' rights remain.
Does the Constitution require counsel and court access for these detainees? Are they able to invoke a range of rights because they are "persons subject to the jurisdiction" of the United States--phrasing from the Fourteenth Amendment understood to be incorporated in Fifth Amendment guarantees of due process? Does the Due Process Clause protect them from government mistreatment and produce rights to counsel--the "hallmark of due process," as Justice Stevens counseled? (15) What role might Fourth Amendment standards on arrest and detention play? (16) Is the First Amendment's petition right relevant? Could structural commitments to limited government and separation of powers generate counsel rights more generally? Or is the umbrella of the Suspension Clause's protection of the writ of habeas corpus the detainees' only shelter? And once efforts to obtain habeas are exhausted, are these individuals left dependent on whatever rights the executive branch accords them?
These treatment of 9/11 detainees puts into question the continuing vitality of the narrative, self-consciously shaped between the 1930s and the 1970s, about the scope of constitutional protections. In a series of decisions, the Supreme Court identified the United States as a country that, unlike totalitarian regimes, had constitutional obligations to constrain forms of interrogation and to equip individuals with third parties--lawyers--to inhibit (if not to prevent) coercion. In search of new meanings of the Constitution to respond to the subordination of racial minorities and to economic inequalities, courts articulated "American" constitutional procedural obligations against a backdrop of documented harms to individual liberty in fascist and Communist regimes.
Gideon, along with another icon of that era, Miranda v. Arizona, (17) recognized the dignity of individuals in their encounters with the state, and required that a person cannot be left alone to be subjected to the totalizing power of the state. Both Gideon and Miranda deployed and subsidized lawyers to serve as witnesses to government interrogation and as advocates, buffering against abuses and bringing claims to public light through court filings. What we term "democratic detention" was the call for disciplined and accountable government action that stood in opposition to the unfettered intrusions that "despotic" regimes visited on people under their control. (18) Lawyers were a method to police the state by opening up closed encounters, and judges identified themselves as overseers to limit government misconduct. Gideon has become so entrenched that, although famously (and scandalously) underfunded, Gideon as an ideal is rarely challenged. (19)
Gideon's wake shaped the rights of Guantanamo detainees, even if Gideon is cited only episodically in the 9/11 briefing, transcripts, and opinions. But the scope and sources of detainees' rights remain underspecified, in part because aspects of the Gideon question were mooted when, three years after lawyers had volunteered to represent the 9/11 detainees, the government acceded to some forms of client contact. (20) Courts have not been put to the task of answering whether detainees are entitled to state-funded lawyers. The focus instead has been on whether the Constitution prohibits the government from imposing barriers to lawyer-client relationships and/or to courts altogether.
Above we flagged a series of questions about the sources of constitutional rights and, at the outset, a brief set of answers is in order. Gideon is one starting place. Although not currently read as a robust resource, the Sixth Amendment could be applied to persons facing criminal-like charges and detention. (21) The Suspension Clause provides another basis. Given detainees' isolation and lack of English language skills, blocking lawyers could work a functional suspension of the writ of habeas corpus by preventing potential petitioners from being able to gather evidence or to marshal claims. But if rights to lawyers were tied only to habeas, they could be extinguished if petitions were denied. A broader reading of the Suspension Clause could encompass judicial authority to oversee executive detention; the need for ongoing oversight might make access to lawyers somewhat more durable. (22) In addition, government regulations, promulgated through an executive order, continue to provide a level of review (now termed "periodic") of detention decisions at Guantanamo. That regulation permits detainees to be assisted by "private counsel, at no expense to the Government," (23) in periodic review proceedings. The Executive Order both confirms that detainees have access-to-counsel rights and asserts that periodic review provisions creates no new enforceable "right or benefit." (24) Preventing detainees from meeting counsel whose role is affirmatively recognized by the government would make banning access to lawyers arbitrary.
Detainees could, however, be viewed as more than bodies held under U.S. control and therefore possess rights independent of and in addition to those sourced in the Sixth Amendment and the Suspension Clause. (25) Both federal and state law regularly reference the right to bring claims to courts, and many...