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Article Excerpt
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 hamper the lawyers, some civilians and some military, who represent the Guantanamo prisoners. The Stimson episode is merely the crudest of these. Disturbingly, there has been a nearly continuous pattern of such policies.
One important caveat: I am not suggesting an orchestrated conspiracy of lawyer harassment. Some of the policies indeed seem deliberate. Others may be the result of bureaucratic inertia. Still others may be the result of incompetence. As one military defense lawyer said to me, "Before you think there's some big conspiracy going on, don't rule out good old-fashioned government incompetence." (19) Another lawyer illustrated with an example: "Sometimes it's hard to tell whether the problems come from conscious design or incompetence. For example, I show up to meet a client and they bring the wrong client. Is that incompetence or something worse?" (20) A third commented ruefully,
"The only thing harder than litigating against an adversary with a plan is litigating against an adversary with no plan." (21) Other harassments may be incidental byproducts of policies designed for other purposes--thus, governmental efforts to break down detainees will also interfere dramatically with their client-lawyer relationships. Finally, some of the harassment may be the result of unauthorized, casual malice against "the enemy" by low-level personnel.
To begin, it will be necessary to sketch out some of the legal and factual background. I will not do so in great detail, because Guantanamo matters have been intensely debated in the legal academy and the press, and readers of the Stanford Law Review need hardly be reminded of them.
I. BACKGROUND
This section begins by describing the relevant categories of detainees and the lawyers who represent them. Guantanamo has contained up to 680 inmates, many of whom were captured in Afghanistan or Pakistan, classified as enemy combatants, and sent to Guantanamo for interrogation and incapacitation. Many of them assert they are cases of mistaken identity: some were captured by Afghani bounty hunters who didn't care if they had the right man, while others were names spewed forth by captives who were tortured. Until the Hamdi decision, the government took the position that detainees were entitled to no process to weed out cases of mistaken identity or false information from the genuine enemy combatants; Hamdi, however, rejected that argument and found that the detainees are entitled to some such process. (22) In response, then-Undersecretary of Defense Paul Wolfowitz set up so-called "Combatant Status Review Tribunals" (CSRTs); but the CSRT procedure does not contemplate giving the detainees lawyers, and in fact prohibits lawyers who represent the prisoners in federal court to consult with their clients about the CSRT proceedings, let alone attend those proceedings. (23) Rather, detainees are assigned a representative who is a non-lawyer military officer. The CSRTs have been subjected to withering criticism, including charges that they have ignored exculpatory evidence and that in some instances the military authorities forced them to redo cases until they found that a prisoner was indeed an enemy combatant. (24)
However, many of the detainees also filed habeas petitions, and a large number of lawyers have been involved in the habeas effort. Rasul v. Bush (25) found that federal courts have habeas jurisdiction over Guantanamo; but Congress limited that jurisdiction in the Detainee Treatment Act of 2005, then again in the Military Commissions Act of 2006. (26) Most of the habeas cases are currently in limbo, awaiting the Supreme Court addressing this legislation in Boumediene v. Bush, which was argued in December 2007. (27)
A few of the detainees were designated to be tried before military commissions. Furthermore, in September 2006 President Bush ordered fourteen high-value detainees to be moved to Guantanamo from secret CIA prisons in other countries, preparatory to their trials before military commissions. Military commission defendants are the second category of detainees. They are assigned military defense lawyers, and most also have civilian lawyers, permitted under military commission rules although the government will not pay for them. Some of the defendants have filed habeas petitions as well, so the categories overlap; and these defendants have habeas lawyers as well as defense counsel.
There are, therefore, three relevant groups of lawyers: (i) civilian habeas lawyers (who I will sometimes refer to as "DTA lawyers," since that is how they often designate themselves), some hired by detainees' families but most working pro bono or for public interest law firms such as the Center for Constitutional Rights (CCR) and Reprieve; (ii) civilian defense lawyers of potential defendants in military commission proceedings; and (iii) military defense lawyers. The criminal defense lawyers' numbers fluctuate, but are in the vicinity of 10 military and 10 civilians. (28)
There is one overwhelming difference between the DTA lawyers and the defense counsel. The military commissions require that counsel be provided for defendants. Thus the government wants and needs criminal defenders. But, as mentioned earlier, the government has consistently opposed habeas rights for Guantanamo prisoners, and by no means wants the prisoners to have habeas lawyers. Thus, the DTA lawyers, unlike the criminal defenders, are in every sense persona non grata by the government.
II. THE DTA LAWYERS
No lawyers were allowed to meet with Guantanamo prisoners until Rasul confirmed the existence of habeas jurisdiction over Guantanamo. However, Rasul was itself the result of a protracted legal effort that began two and a half years earlier, when President Bush first announced the military commissions. A group of public interest lawyers, including death penalty lawyers Joseph Margulies and Clive Stafford Smith, and lawyers from CCR, a New York-based public interest organization, began planning a litigation strategy in January 2002. (29) Among the initial difficulties they faced was that the prisoners they hoped to represent were all held incommunicado. That made it necessary to locate their relatives to consent to next friend status for the lawyers--a difficult task because the government would not release a list of prisoners. The only sunlight came because the United States permitted the Red Cross to notify captives' families. Unsurprisingly, locating relatives proved easiest to do with detainees from the U.K. and Australia, whose families were eager to find legal representation. It was more difficult with those from Arab countries. As Red Cross postcards went out to families of detainees, Stafford Smith and lawyer Steven Watt traveled to Jordan, Bahrain, and Yemen to meet with human rights groups that helped put out the word that lawyers were seeking families who wanted legal representation for their relative; eventually they got several dozen next friend permissions. (30) Shearman & Sterling lawyers became involved in the case of Fawzi Khalid Al-Odah because they knew his father through their Kuwait business practice; eventually Shearman & Sterling lawyers represented ten Kuwaitis. (31) But the process was haphazard until a major breakthrough in 2005, when a JAG stationed in Guantanamo anonymously mailed a CD with the list of the detainees to CCR. (32) Soon after, the government released the list of names.
At first, private lawyers were reluctant to represent detainees, and the lawyers representing Rasul initially had a hard time recruiting a Washington, D.C. lawyer to serve as local counsel. (33) That reluctance gradually changed, and five years into the process Stafford Smith estimated the total number of lawyers involved in detainee representation at almost five hundred. (34)
A. The Mechanics of Access
The mechanics of meeting with their clients comprise one important set of policies that make these representations unusually difficult. To begin with the obvious, it is not easy to get to Guantanamo. There is one flight a day, four days a week, in an eight-to-ten seat plane, where often the seats are taken by civilian contractors or military personnel on leave; unlike the military defense lawyers, civilian counsel cannot fly down on military planes. (35) The scarcity of seats and the need to bring an interpreter means that an entire legal team can seldom make the trip; CCR's Gitanjali Gutierrez, the first habeas lawyer to visit Guantanamo, was able to bring a full complement of lawyers and paralegals only once out of many visits. She reserves her flights two months in advance. Telephone access to the clients is prohibited, and mail is extremely slow. It is vetted by a privilege team and a staff judge advocate, and initially took two to four months to be delivered (the time is now reduced to two or three weeks when the lawyers provide Federal Express mailers). (36) Sometimes, the detaining authorities withhold client letters from their lawyers, which erodes client trust when the lawyers don't reply. (37) At the end of an interview, the lawyers must leave their notes behind for review by a privilege team; eventually the notes will be sent to Washington and then on to the lawyer. If a page contains classified information, it is confiscated. Stafford Smith once asked what the classification criteria are, so that he might know what to leave out of his notes to avoid having them confiscated; in response, he was told that the classification criteria are themselves classified. To avoid losing valuable information, he now sometimes writes only one sentence per page, unable to guess what will and will not be deemed a threat to national security. (38) At the end of a day's interviewing, and temporarily divested of their notes, the lawyers are not given a secure space to confer with each other. (39)
Some of these difficulties are the byproducts of security procedures and Guantanamo's geographical isolation. Other difficulties of access seem to be the result of deliberate harassment. One lawyer says:
They don't tell the detainee that his lawyer is there to see him. Instead, they tell him that he "has a reservation," which means an interrogation. The detainee says he doesn't want to go, so then they tell the lawyer that his client doesn't want to see him. But they will allow lawyers to write notes to the client trying to change their minds. I was scheduled to meet with one of my clients, Abu Abdul Rauf Zalita. Zalita had already been cleared for release, but he didn't want to go back to his home country of Libya because he's afraid he will be tortured. They tried twice to put him on a plane to Libya. His case is pending in the Supreme Court. I went to the base to visit him in April. I had written to him first, so he knew he was supposed to meet with me in the morning. But when I got there first thing in the morning (with my two Navy escorts, my paralegal, and my interpreter), I was told he didn't want to meet with me. I wrote him a note, handed it to the JAG lawyer, who took it into the prison. We waited in a van outside Camp Delta, which wasn't necessarily the same place I would meet the client. We aren't allowed to go in while the note is delivered. The JAG major came back a few minutes later, and said, "Your client still refuses to see you." I asked, "Did you have an interpreter with you when you asked him?" and he said, "No I didn't, I just handed him your note." So my meeting with my client doesn't happen that morning. Later that day I meet up with Zachary Katznelson [senior counsel at Reprieve, also a DTA lawyer], who tells me that his client Sami al-Haj witnessed the incident with the JAG and Zalita. The guards told Zalita that he was going to a "reservation," then they put on the cuffs so tightly that they hurt him. He complained about the cuffs, and they took that as a refusal to meet me and tossed him back in his cell. And there was an interpreter present. The next day, I met with another client who told me exactly the same thing that Sami al-Haj told Zachary. Both clients were right there; they had cells next to Zalita. I asked whether I could meet Zalita that evening, and was refused. So I confronted the JAG major, who said, "Are you accusing me of wrongdoing?" I said no, I was just pointing out to him that the...
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