Lawfare and legal ethics in Guantanamo.

• Author: Luban, David

INTRODUCTION I. BACKGROUND II. THE DTA LAWYERS A. The Mechanics of Access B. Sowing Mistrust C. Making the Lawyers Look Powerless in Their Clients' Eyes III. THE MILITARY COMMISSIONS DEFENSE COUNSEL A. Who Are the JAGs? B. Conflicts of Interest 1. Structural problems in the Office of Military Counsel-Defense 2. Lt. Col. Bradley's conflict 3. The Hicks defense IV. WHY? A. The Lawfare Hypothesis B. The Torture Cover-up Hypothesis CONCLUSION INTRODUCTION

In January 2007, Charles "Cully" Stimson gave an early morning interview on a local talk radio station in Washington, D.C. Stimson was Deputy Assistant Secretary of Defense for Detainee Affairs, and his subject was Guantanamo. (1) After a few innocuous questions and answers, and a dig at Amnesty International, Stimson abruptly changed the subject. "I think the news story that you're really going to start seeing in the next couple of weeks is this." He continued:

As a result of a FOIA request through a major news organization, somebody asked, "Who are the lawyers around this country representing detainees down there?" And you know what, it's shocking. The major law firms in this country--Pillsbury Winthrop, Jenner & Block, Wilmer Cutler Pickering, Covington & Burling here in D.C., Sutherland Asbill & Brennan, Paul Weiss Rifkind, Mayer Brown, Weil Gotshal, Pepper Hamilton, Venable, Alston & Bird, Perkins Cole, Hunton & Williams, Fulbright Jaworski, all the rest of them--are out there representing detainees, and I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. It's going to be fun to watch that play out. (2) Stimson did not have to wait weeks for the story to have "major play." Within days, newspaper editorials and bar groups denounced Stimson's crude attempt to pressure the Guantanamo lawyers to abandon their clients; Charles Fried, the conservative former Solicitor General, wrote a blistering op-ed against Stimson; and the Defense Department embarrassedly disowned Stimson's comments. (3) Stimson apologized; and three weeks after the interview he was out of a job. (4)

Despite the Defense Department's assurance that Stimson's views are not those of the Department (and his own peculiar assurance that he himself does not hold the views he expressed), the fact remains that he occupied the detainee affairs desk within the department. He was not sandbagged or ambushed by reporters, nor was he the victim of a document leak. He evidently went into the interview planning to raise the suggestion that corporate CEOs pressure lawyers into abandoning their clients, and he clearly brought the list of law firms in with him. Nor was his suggestion out of line with the government's overall policy on habeas corpus rights for detainees. The government's unwavering legal position has been to oppose those rights, and the government has never wanted the detainees to have habeas lawyers. Stimson's downfall was not because his goal of separating the volunteer lawyers from their clients is antagonistic to the Defense Department's policies--for, as we shall see, it is not. Its cause was merely his ham-fisted methods and the embarrassment he occasioned.

This Article is about government policies that have (intentionally or not) made it more difficult for lawyers to provide legal representation to Guantanamo prisoners. In the course of writing the Article, I have had in-depth conversations with several of the Guantanamo lawyers, both military and civilian, and will draw on those conversations, as well as documents and published accounts. (5) The difficulties the lawyers face include policies designed to reduce their access to their clients; policies that create knotty ethical difficulties for military commission defense lawyers, particularly lawyers in the uniformed armed services; and practices that, in the words of one lawyer, "are designed to drive a wedge between lawyers and their clients.'' (6) My secondary aim is to shed some light on this segment of law practice and the lawyers who engage in it. This is not necessarily an aim that the lawyers themselves welcome; uniformly, those with whom I have spoken prefer a low profile, because they don't want to deflect attention from their clients to themselves. (7) Nevertheless, in this symposium on the legal profession it seems entirely appropriate to look at the legal practice from the standpoint of the lawyers, without denying that in the scheme of things it is not nearly as important as the situation of the prisoners they represent.

Before proceeding, it will be useful to lay out some of the broader issues of professional ethics at stake in these cases. In 2003, I published an essay entitled Taking Out the Adversary: The Assault on Progressive Public Interest Lawyers. (8) What prompted that essay was a disturbing pattern of maneuvers by politicians, jurists, and conservative litigators to degrade the capacity of progressive public interest lawyers to bring cases. The examples I analyzed included draconian restrictions on Legal Services lawyers, legal challenges to Interest on Lawyer Trust Accounts programs used by states to fund legal aid, political attacks on law school clinics, and damaging judicial interpretations of fee-shifting statutes. The effect of all these attacks--and the explicit purpose of at least some--was to win legal battles by eliminating or hobbling the advocates on the other side rather than by offering better arguments. (9) That is precisely the phenomenon that forms the subject of the present Article.

Such tactics offend a fundamental principle of justice, the due process maxim audi alteram partem, "hear the other side." Drawing on the work of the philosopher Stuart Hampshire, I argued that audi alteram partem is not only a principle of procedural justice in the law, but a broader principle of justice as well. (10) Hampshire understood quite clearly that human affairs are riddled with bitter conflict, strong partisan emotions, and Machiavellian ruthlessness. Any realistic theory of justice must admit at its most basic level that conflict, disagreement, and partisanship are fundamental facts of the human condition. But even the fiercest partisans should hear the other side; that minimum level of openness is what stops political hardball from sliding into sheer brutality. (11) Within the legal system, taking out the adversary aims to silence the other side. That is at once an issue of professional ethics and access to justice. The theory of legal ethics that comes closest to justifying ruthless partisan tactics rests on the nature and structure of the adversary system; but the adversary system itself can be justified only to the extent that parties actually have representation within it. (12)

Hampshire thought that audi alteram pattern justifies the adversary system, but he is only partly right. To the extent that the adversary system provides a vehicle for parties and arguments to be heard by a decision maker, it is indeed the paradigm of audi alteram partem. But lawyers understand that a great deal of litigation practice consists of elaborate maneuvers to exclude evidence, intimidate litigants into dropping cases, or prevail by exhausting the adversary's resources. That aspect of the adversary system mocks audi alteram partem and the proceduralized vision of justice it represents. For that reason, I have long been a skeptic of the adversary system as the basis of lawyers' ethics; its double-edged nature makes it a deeply imperfect embodiment of audi alteram partem. (13) Lawyers often appeal to the adversary system to excuse hardball tactics and unsavory representations, and if the adversary system has no better justification than the pragmatic argument that it is no worse than its feasible alternatives, the adversary system excuse fails.

In offering this critique of adversarial legal ethics, I make an exception for criminal defenders, whose zealous advocacy provides an important safeguard of our rights against state power. But other critics of adversarial ethics do not admit even this exception. William Simon sees no essential difference between the criminal defender and any other lawyer. He points out that in most criminal prosecutions "the government" is no Leviathan--it is a harried and overworked district attorney with a small budget and a police witness who may not even show up for the court date. (14) Although I don't accept all of Simon's arguments, I have no doubt that he is right that in the vast majority of criminal prosecutions "The State" is no Leviathan. (15)

This Article, however, focuses on a class of cases in which the power of Leviathan can scarcely be exaggerated, even though only a handful are criminal cases: those involving the Guantanamo detainees in the global war on terrorism. In these cases, millions of dollars of resources, and the attention of some of the highest officials of government, have been devoted to capturing, imprisoning, isolating, interrogating, and in some cases torturing a few hundred men and boys. This is not to assume that the prisoners are all, or even mostly, innocent (something that, at this point, literally no one person is in a position to know). (16) Here, as in criminal defense, the purpose of providing lawyers to individuals in the jaws of Leviathan is to safeguard human dignity against government overreaching and abuse, and that purpose remains valid regardless of client guilt. (17) The triple threats of government malice, government error, and official reluctance to admit mistakes by fixing them justify the zealous advocate's role in representing imprisoned individuals. (18) The importance of this role heightens the injustice of policies and practices that harass, silence, or...