Military lawyering and professional independence in the war on terror: a response to David Luban.
Author | Dunlap, Charles J., Jr. |
Position | Response to Stanford Law Review, vol. 60, p. 1981, 2008 |
INTRODUCTION I. THE LUBAN APPROACH A. Synopsis B. Audi Alteram Partem? II. LUBAN'S MISCONCEPTIONS A. The "Leviathan "Myth B. Despicable Scheming or Reasonable Precaution? C. Intrinsic Tribulations of Defense Counsel or Product of "Designed" Policy? D. Conflict of Interest or Misapprehension of Applicable Rules? III. THE LIMITS OF ZEALOUS REPRESENTATION A. Misreading the Advocacy System B. Zealous Representation--Bounded by Ethical Rules 1. Limits on promotion of partisan interests 2. Limits on extra judicial defenses IV. THE MILITARY LAWYER CONCLUSION INTRODUCTION
Have U.S. government lawyers, including military attorneys, designed policies with the "goal of separating ... lawyers from their clients" at Guantanamo? (1) Have these government lawyers "worked ... hard to take out the adversary lawyers at Guantanamo?" (2) Are government policies unethically interfering with the responsibilities of defense counsel for the detainees? Are there special difficulties for military defense attorneys?
These are some of the ethics questions panelist Professor David Luban of the Georgetown University Law Center sought to address at a conference on the American legal profession sponsored by Stanford University in March of 2008. (3) The Stanford Law Review published his expanded views under the title Lawfare and Legal Ethics in Guantanamo. (4)
The purpose of this Response is to assess critically Professor Luban's effort and, in key areas, dispute his inferences and conclusions. In particular, we hope to add the perspective of military lawyers to this important subject. In doing so, we will not, however, debate all of the substantive issues of law that Professor Luban's Article touches upon. Thus, for example, we will not discuss the extent of habeas rights following the Supreme Court's decision in Boumediene v. Bush (5) or the architecture of the Military Commissions Act of 2006. (6) Nor will this Article advocate for Guantanamo per se, as we share the almost universal agreement of a need for an alternative to the detention center. (7) Nor do we intend to be apologists for torture or any other illegality committed by anyone.
In discussing Professor Luban's approach and misconceptions in Parts I and II, we note that his research is confined principally to detainees and their Sincere thanks to the Stanford Law Review for inviting us to submit this Response and to the many readers who offered comments on earlier drafts, and special thanks to Staff Sergeant R. Andy Mathews for his research assistance. The views expressed in this Response are our own and not necessarily those of the Department of Defense. counsel. Accordingly, we will contend that a more complete approach, which impartially weighs all available facts and fairly considers alternative explanations, would produce a more efficacious dialogue for practitioners and academics alike. In short, we argue that an evenhanded approach that seeks out both sides of disputed issues is a better analytical vehicle than one that too readily ascribes nefariousness or incompetence to every act of the opposing side.
We will contend that the principal value of Professor Luban's Article, somewhat ironically, is not so much the issues he intended to explore, but rather the questions that his discussion raises--perhaps unintentionally--particularly with respect to defense counsel and their role. While we will identify many of these questions in Part III, we will not purport to resolve most of them. We will, however, in Part IV, categorically dispute Professor Luban's inference that Judge Advocates General (JAGs) face a possible role conflict between duties of a patriot and an advocate. We take a firm stand on the candid counsel of military lawyers.
We believe allegations of ethical impropriety like those Professor Luban makes are serious matters that deserve a more complete vetting than he provided. Simple justice requires that before even implying that men and women in the service of their country designed a policy to "take out the adversary lawyers at Guantanamo," (8) one needs to assemble more than the collection of anecdotes and innuendos that Professor Luban provides.
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THE LUBAN APPROACH
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Synopsis
Professor Luban's approach is rather peripatetic. Initially, he dispassionately identifies his concerns as being those "government policies that have (intentionally or not) made it more difficult for lawyers to provide legal representation to Guantanamo prisoners." (9) The tenor of the rest of his text, however, quickly becomes more antagonistic when he quotes, with evident approval, a Guantanamo defense attorney's vastly more strident and serious charge that the practices "are designed to drive a wedge between lawyers and their clients." (10)
Notably, Professor Luban says that the "secondary aim [of his Article] is to shed some light on this segment of law practice and the lawyers who engage in it." (11) He describes the "three relevant groups of lawyers" as being (1) "civilian habeas lawyers" who he says call themselves "DTA lawyers" in apparent reference to the Detainee Treatment Act; (12) (2) civilian defense attorneys representing those detainees accused of crimes before military commissions; and (3) uniformed military defense counsel of the several services' JAG Corps. (13)
With respect to the DTA lawyers, he criticizes the mechanics of their access to detainees at Guantanamo, (14) charges the government with "sowing mistrust" of defense counsel among the detainees, (15) and accuses the government of "mak[ing] the lawyers appear as powerless as possible [in their clients' eyes]." (16) He then addresses what he defines as "military commissions defense counsel" (17) but largely restricts his discussion to JAG officers. Among other issues, he examines supposed "[s]tructural problems in the Office of Military Counsel-Defense" and an alleged "conflict of interest" for JAGs because of their dual status of lawyer and officer. (18)
Professor Luban's final section offers two hypotheses as to "why the United States government ... has worked so hard to take out the adversary lawyers at Guantanamo." (19) The first, his "lawfare hypothesis," contends that the Bush Administration considers the lawyers representing detainees as waging lawfare against the government, "mak[ing] them the equivalent of enemy combatants" and thus explaining why the government would "tak[e] out" defense counsel. (20)
Professor Luban calls his second theory "The Torture Cover-up Hypothesis." (21) His argument boils down to his belief that "[c]reating difficulties for defense lawyers helps to make plea bargains the only viable option for detainees." (22) This would relieve the government of what he deems a need to rely upon evidence obtained by torture. (23)
Professor Luban concludes that whether his claimed "persistent harassment of Guantanamo lawyers is best explained by the lawfare theory or the torture cover-up theory," or by some "more innocent theory ... is unanswerable by those not privy to the government's strategy." (24)
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Audi Alteram Partem?
Professor Luban premises his arguments on what he terms "the due process maxim [of] audi alteram partem;" that is, the requisite need to "hear the other side." (25) He alleges that "government policies ... [make] it more difficult for lawyers to provide legal representation to Guantanamo prisoners." (26) This situation, he contends, operates to deny "not only a principle of procedural justice in the law, but a broader principle of justice as well." (27)
We find that his failure to adhere to this same maxim ironically transforms what might have been an objective work that would resonate across the legal community into simply another "amen chorus" for one set of antagonists. Put simply, Professor Luban relies almost exclusively upon the perspective of one side of the debate--namely Guantanamo detainees, their counsel, and those sympathetic to them. (28) In examining their contentions he gives no consideration to the presumptions of regularity the law normally accords the government. (29) Instead, he favors ascribing corrupt motives to any governmental act or omission that supposedly made it more difficult to represent Guantanamo detainees. (30)
Although the narratives of the accused terrorists and the lawyers who represent them are important, so too are the narratives of the government lawyers and others who represent the people of the United States and, in doing so, the thousands of Americans killed by terrorists in the United States, Iraq, and Afghanistan. (31) However unpopular the politics of the war may be, the savagery of the illegalities inflicted upon the victims of terrorism is almost incomprehensible. Indeed, even vociferous Guantanamo opponent Dahlia Lithwick recently conceded that, although she roundly criticizes the behavior of some government authorities, "there is no moral equivalence between the actions of the Bush administration and those of the alleged 'enemy combatants' at Guantanamo." (32)
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LUBAN'S MISCONCEPTIONS
The unique setting of the Guantanamo issues can help explain many of the circumstances Professor Luban finds nefarious. These issues arise in a "hybrid" environment of modern, globalized terrorism, where traditional criminal law converges with aspects of the international law of armed conflict. (33) Importantly, the scope and, especially, the ongoing nature of the threat pose unique challenges vital to understanding the government's actions. As the late Supreme Court Justice William H. Rehnquist put it:
In wartime, reason and history both suggest that this balance shifts to some degree in favor of order--in favor of the government's ability to deal with conditions that threaten the national well-being. It simply cannot be said, therefore, that in every conflict between individual liberty and governmental authority the former should prevail. (34) Disregarding this wartime context, as well as the accepted maxim of American...
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