Waging War Against the Executive and Legislative Branches

Rooney Patterson Professor Maute Lawyering in the 21st Century Spring 2007

Waging War Against the Executive and Legislative Branches: Federally Appointed

Attorneys Upholding the Rule of Law in Guantanamo Bay, Cuba.

I. INTRODUCTION

I must first begin my paper with a disclaimer. I feel ill-equipped to accomplish the

seemingly straightforward task I have set out for myself: to discuss the ethical issues surrounding

the detention of “enemy combatants1” at Guantanamo Bay, Cuba, and the role of a government

attorney in upholding the rule of law. As I read on through the endless sea of comments, notes,

scholarly articles, judicial decisions, treaties and commissions, I discovered that the more I read,

the less educated on the subject I became. There are simply too many ethical issues in regards to

the detainees at Guantanamo Bay. Suggesting that the law can be fully upheld and a lawyer has

the capacity to act in full compliance with personal and legal ethics, and follow the instructions

of his client in Guantanamo Bay is absurd. But, this is the task before me, and I hope I can shed

some light on the subject, and draw attention to one of the most important issues that Americans

and government appointed defense attorneys face today: how to uphold the rule of law and

justice in Guantanamo Bay, Cuba.

II. THESIS/ SUMMARY

In this paper, I will discuss the ethical dilemmas that government attorneys must face on

a day-to-day basis during their representation of a detainee. The ethical considerations are

1 Military Commission Act, 10 U.S.C. § 948a (2006) [hereinafter MCA]. “941(a)(1)(i) [unlawful enemy combatant means] a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Aqeda, or associated forces); or (ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.”

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numerous, and range from suspension of habeus relief, to attorney-client confidentiality, to the

right of an accused to self-representation. Government prosecutors have an easier job than do

assigned defense attorneys, like Charles Swift of the JAG (Judge Advocate General) Corps, so

my focus will be in discussing the inherent ethical dilemmas faced by government appointed

defense attorneys to the Guantanamo detainees. Chances are, no matter how poor of a job the

prosecutor does, he will likely prevail, whether or not in Court, or through Executive fiat or

Congressional approval. A government appointed defense attorney however, faces many more

problems. He is required to provide adequate representation to his client, a virtual impossibility

in Guantanamo. If he succeeds, he is likely to be shunned by his state bar, the legal profession,

family and friends, be asked to take a “temporary leave of absence from work”, and have a

difficult time finding work again in the legal profession again. My question is simple, but

unfortunately the answer is not: how is a government appointed defense attorney supposed to

uphold the rule of law while representing his client, when he is faced with enormous odds and

obstacles to overcome, with specific emphasis on the writ of habeus corpus.

III: HISTORY

Before I delve in to my paper, I must lay some rather lengthy background, beginning

from the first group of Guantanamo detainees, up to the present, with specific emphasis on the

evolution of detainee’s legal “rights”.

The first group of detainees arrived at Guantanamo Bay, Cuba on January 11, 2002.2

One week later, President Bush decided that detainee’s status as terrorists meant that they were

disqualified from receiving prisoner-of-war (POW) protection under the Geneva Conventions.3

2 Washington Post Home Page, http://projects.washingtonpost.com/guantanamo/timeline (last vistied Apr. 10, 2007). 3 Geneva Convention Relative to the Treatment of Prisoners of War art. 102, Aug. 12, 1949 T U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GPW].

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“POWs enjoy special rights under the Geneva Conventions that [enemy combatants] detained in

Guantanamo do not have[…].” On February 19, 2002 a habeus petition was filed in the D.C.

circuit court, Rasul v. Bush, followed by Yasser Hamdi filing a writ of habeus corpus on June 11,

2002.

Then came a huge blow for the detainees; the federal appeals court ruled that detainees

had no rights in the United States in Al Odah v. U.S.4 They based their finding on the fact that

Guantanamo Bay is not within the jurisdiction of the United States. The Court stated that the

U.S. government has occupied the Guantanamo Bay Naval Base under a lease from the

government of Cuba since 19035, and that under the terms of the lease, the U.S. agreed to

recognize the sovereignty of Cuba over the Naval Base.6 The Courts finding also had the

following dire consequences for the detainees:

“[t]he consequence is that no court in this country has jurisdiction to grant habeas

relief to the Guantanamo detainees, even if they have not been adjudicated

enemies of the United States. We cannot see why, or how, the writ may be made

available to aliens abroad when basic constitutional protections are not. If the

Constitution does not entitle the detainees to due process, and it does not, they

cannot invoke the jurisdiction of our courts to test the constitutionality or the

legality of restraints on their liberty.”7

The detainees finally achieved a small victory on June 28, 2004, when the Supreme Court

ruled that federal courts have jurisdiction to hear habeus petitions filed by Guantanamo Bay

4 Al Odah v. U.S., 321 F.3d 1134. (C.A.D.C., 2003). Not followed as dicta, Hamdan v. Rumsfeld, 344 F.Supp. 152 (2004). 5 Lease of Lands for Coaling and Naval Stations, Feb. 23, 1903. U.S.-Cuba T.S. No. 418. 6 Al Odah v. U.S. supra note. 4, at 1142. 7 Id.at 1141.

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detainees.8 Additionally, Hamdi v. Rumsfeld was decided the same day, and the Court held that

a detainee possessed the right to know the factual basis for his classification as an “enemy

combatant” being held in Guantanamo Bay, and be provided a fair opportunity to rebut the

Government’s assertions in front of a neutral decisionmaker.9 In response to these decisions, the

Pentagon, on July 7, 2004, created Combatant Status Review Tribunals (CSRTs) to determine

each detainees “enemy combatant status.” The Department of Defense Order establishing the

CSRTs states that the CSRTs will serve as a forum for detainees to contest their “enemy

combatant” status; that they shall be notified within ten days of the opportunity to contest their

status, and that the tribunal process will start as soon as possible10. Additionally, the Order lays

out the composition of the CRSTs and the process for a detainee being heard by a CRST.

“An individual tribunal will be comprised of three neutral officers […]

Each detainee will be assigned a military officer as a personal representative. That

officer will assist the detainee in preparing for a tribunal hearing. Detainees will

have the right to testify before the tribunal, call witnesses and introduce any other

evidence. Following the hearing of testimony and other evidence, the tribunal will

determine in a closed-door session whether the detainee is properly held as an

enemy combatant.”11

Finally, comes the journey of Salim Ahmed Hamdan, who allegedly worked as Osama

Bin Laden’s driver. U.S. District Court Judge James Robertson, in a ruling on November 8,

200412 ordered the Pentagon to halt the trial of Hamdan, saying that the military commissions

8 Rasul v. Bush, 124 U.S. 2686 (2004). 9 Hamdi v. Rumsfeld 542 U.S. 507 (2004). 10 U.S. Department of Defense, Order No. 651-04, July 7, 2004. 11 Id. 12 Carol D. Leonning and John Mintz, Judge Says Detainee’s Trials are Unlawful: Ruling is Setback for Bush Policy, Washington Post, November 9, 2004, at A01.

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(CRSTs) were unlawful and could not proceed in their current form. Judge Robertson said that

the detainees were likely POWs under the Geneva Conventions, and were entitled certain rights

which the U.S. government had unlawfully failed to extend to the detainees. On July 15, 2005,

the Court of Appeals for the District of Columbia Circuit Court upheld unanimously President

Bush’s powers to create the military commissions, overturning Judge Robertson’s order.13

On November 7, 2005, the Supreme Court announced that it would hear Hamdan v.

Rumsfeld14, and on March 28, 2006, the Supreme Court heard the oral arguments.15 On June 29,

2006, a great victory was achieved for the detainees. The Supreme Court ruled in a 5-3 decision

in Hamdan that the military commission system established for Guantanamo Bay violated U.S.

law, specifically the Uniform Code of Military Justice, international law, and that the Geneva

Conventions were applicable to the detainees.16 The Court additionally said that President

Bush’s military tribunals violated international and domestic law, and had been established

without Congressional authorization.17 It reversed the Court of Appeals decision, and remanded

to district court.

The victory for the detainees and for justice was short-lived. On October 17, 2006,

President Bush signed the Military Commission Act (MCA) into law. On December 13, 2006,

Judge Robertson, who has previously held that the CRSTs were unlawful, dismissed Hamdan’s

habeas corpus case citing lack of jurisdiction under the MCA, setting up yet another appeal to the

Supreme Court.

13 Jeffrey Smith, Detainee Trials Are Upheld: Court Backs Bush on Military Panels, Washington Post, July 16, 2005, at A01. 14 Washington Post Homepage, supra note 2, at 5. 15 Id. 16 Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) [hereinafter Hamdan]. 17 Marie Brenner, Taking on Guantanamo, Vanity Fair, March 2007, pgs. 328-341, at 330 [hereinafter Vanity Fair].

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The latest defeat for the detainees came on February 20, 2007 in Lakhdar Boumediene v.

George W. Bush, which was a consolidation of the cases of 63 foreign detainees who had

previously sought review in two federal district courts. A divided federal appeals court upheld

the constitutionality of a new law that deprived federal judges of their competency to review

detainees’ challenges to their internment at Guantanamo Bay.18

V: ETHICAL AND PROCEDURAL OBSTACLES GOVERNMENT APPOINTED DEFENSE

ATTORNEYS FACE.

In light of the virtual limbo that government appointed defense attorneys face in regards

to whether or not, at any given moment their detainee clients have the right to habeus corpus,

how are they to proceed? What are the actual legal rights of a Guantanamo Bay detainee? These

are questions that the defense attorneys face everyday.

A. Detainee’s Right to Habeus Corpus19 Relief, the Case of Charles Swift

Twice the Supreme Court has ruled in favor of the detainees’ right to habeus corpus

petition challenging their detention in Guantanamo Bay.20 In response to these rulings, Congress

has twice rewritten the law to further curtail the detainees’ “avenues” of appeal.21 The latest

decision was in response to the MCA signed by President Bush last October.22 The Court found

that the MCA does not violate the constitutional provision that bars the government from

suspending habeus corpus relief except in cases of rebellion or invasion23. The Court

18 Stephen Labaton, Court Endorses Curbs on Appeal by U.S. Detainees, Ruling on Habeas Corpus: Law Stripping Judges of Power on Guantanamo Cases is Upheld, 2-1, The N.Y. Times, February 21, 2006, at A1 [hereinafter Labaton,]. 19 Black’s Law Dictionary (Bryan A. Gardner ed., West Publishing Co, 2004) (1981). “A writ employed to bring a person before a court, most frequently to ensure that the party’s imprisonment or detention is not illegal.” 20 Labaton, supra, note 18, at A1. 21 Id. 22 Id. 23 U.S. Const. art. I, § 9,cl. 2.

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additionally found that habeas relief does not extend to foreign citizens detained outside of U.S.

Jurisdiction24.

The Military Commissions Act of 200625 eliminated the federal courts’ jurisdiction over

habeus corpus challenges by detainees. In lieu of federal courts hearing the detainee’s habeus

petitions, the MCA set up military panels to review individual cases of detention, with a limited

right of appeal to the courts.

The MCA amended certain provisions of the Detainee Treatment Act of 200526 in

regards to habeus corpus petitions for detainees. The pertinent provisions state that:

“(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an

application for a writ of habeus corpus filed by or on behalf of an alien detained

by the United States who has been determined by the United States to have been

properly detained as an enemy combatant or is awaiting such determination.”27

Additionally, the MCA states:

“(2) Except as provided in […] of the [DTA], no court, justice, or judge shall have

jurisdiction to hear or consider any other action against the United States or its

agents relating to any aspect of the detention, transfer, treatment, trial or

conditions of confinement of an alien who is or was detained by the United States

and has been determined by the United States to be an enemy combatant or is

awaiting such determination.”28

These two provisions, the latest in a series of executive and legislative acts abrogating a

detainee’s legal rights provide an enormous obstacle for federally appointed government

24 Labaton,, supra, note 18, at A1. 25 MCA, supra note 1. 26 Detainee Treatment Act, 10 U.S. C. 801 (2005) [hereinafter DTA]. 27 MCA, supra note 1, at Sec. 7(e)(1). 28 Id. at Sec. 7(e)(2).

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attorneys who represent the detainees. Charles Swift, JAG attorney assigned to defend Salim

Ahmed Hamdan (Hamdan), is the perfect example of an attorney who has struggled against the

government, obtained a victory that some legal scholars have deemed comparable in its

ramifications for America to U.S. to Brown v. Board of Education, only to be defeated by the

President and Congress.29

Charles Swift (Swift) was assigned to represent Hamdan by the Navy JAG Corps. He

had been asked, he stated in Vanity Fair, to “defend enemy combatants […]under rules that,

were he to follow them as a civilian lawyer, would be clear ethical violations.30 Among these

included no right to habeus corpus, no attorney-client privilege, forced guilty pleas for charges

that would not be made public, coerced confessions, juries and judges handpicked by the

executive, and clients who declined representation, but whose attorneys had been ordered by the

military commissions to “stay” on the case.31 Swift was joined in his defense of Hamdan by

constitutional scholar and Georgetown law professor Neal Katyal, and navy lieutenant

commander Philip Sundel, also of the JAG Corps. Together, they took Hamdan all the way to

the Supreme Court achieving a monumental victory on behalf of Hamdan an all Guantanamo

Bay detainees, only to have their hard work overturned by Congress passing the MCA and

President Bush’s subsequent seal of approval with his signature.

“The constitutional issue could not be more stark […] [w]hat they are doing is

unprecedented.”32 His reaction to the MCA is completely justified. Swift worked for years on

the Hamdan case, ultimately sacrificing time away from his wife, which nearly cost him his

29 Vanity Fair, supra note 17, at 330. 30 Id. 31 Id. 32 Id. at 330.

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marriage, and a victory that cost him his career in the navy.33 Swift was not the only one

affected. Katyal said in a recent law review that there were, “well over 1000 people working on

the Hamdan case in one capacity or another, as student volunteers, as law firm attorneys pro

bono, and as representatives of organizations.”34 As Katyal illustrates, over 1,000 people, many

of whom were volunteers, worked together to bring Hamdan all the way to the Supreme Court.

Obviously, more people than just Swift and Katyal dedicated themselves to upholding the rule of

law despite all odds in Guantanamo Bay and were able to find law and justice for Hamdan and

the other detainees. The passage of the MCA was a major upset for those people who dedicated

time away from their families, school work and careers working on Hamdan. Hopefully the

MCA outraged these people enough that they will continue the fight to uphold the rule of law.

B. Additional Ethical Dilemmas Attorneys Must Face

Before his first encounter with Hamdan, Charles Swift outlined ethical dilemmas he

would have to overcome during his representation. One such hurdle was to defy the executive

and obtain habeus relief for not only Hamdan, but the other detainees as well. He was a success,

but only for a moment. But winning in the Supreme Court was the last obstacle Swift and his co-

counsel Kaytal had to overcome. From the beginning, both men faced enormous odds and

ethical dilemmas.

First there was the issue of discovery. In a military or federal court, it is the

responsibility of the prosecutor to provide the defense with every shred of evidence regarding the

case.35 In the case of Hamdan, even the prosecution had been denied access to all the evidence

33 Id. at 331. 34 Neal Kumar Katyal, Hamdan v. Rumsfeld: The Legal Academy Goes to Practice, 120 Harv. L. Rev. 65, at 118 (2006) [hereinafter Legal Academy]. 35 Vanity Fair, supra note 17, at 337.

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by the CIA.36 The prosecution began to confide in Swift their frustrations with the whole

process, telling Swift, “[w]e have given you everything we have been cleared for. It is difficult

to get evidence out of the bureaus. We are trying.”37 William Haynes, Pentagon general

counsel, told Swift on more than one occasion in the middle of meetings regarding the case that

he would have to leave, and could not be part of the “privileged-information distribution.”38

Swift said it was a struggle from the outset to get all the evidence and the information.

How are attorneys, like Swift, supposed to represent their clients when they aren’t even

allowed access to all the information, under the guise that it is in the interest of national security

that the evidence remain privileged? The MCA defines classified information to be “[a]ny

information or material that has been determined by the United States Government pursuant to

statute, Executive order, or regulation to require protection against unauthorized disclosure for

reasons of national security.”39 The MCA further states that the accused has the right to be

present at all time during trial, except when the accused is required to be excluded.40 One such

time when the accused has to be excluded is when the privilege of national security has been

asserted. The detainee’s attorney may not even be permitted to hear the classified information.

The pertinent provisions regarding national security state:

“[…] Classified information shall be protected and is privileged from disclosure if

disclosure would be detrimental to the national security. [This rule applies to all

stages of the proceedings of the military commissions.] The privilege […] may be

claimed by the head of the executive or military department or government

agency concerned based on a finding […] that (i) the information is properly

36 Id. 37 Id. 38 Id. 39 MCA, supra note 1, at 948(a)(4)(A). 40 Id. at 949b(B).

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classified; and disclosure of the information would be detrimental to the national

security.”41

Additionally, at any time during trial, if an objection is made upon the assertion that the evidence

or testimony being set forth is privileged because of national security, the military judge, at the

request of counsel, may, on an ex parte basis, hear the reasoning for the objection, or hold an en

camera review to consider the validity of the asserted privilege.42 Finally, a claim of national

security privilege, upon request of the government, shall be considered by the military judge in

camera and shall not be disclosed to the accused.”43

It would appear that there is no current solution to the discovery dilemma. Without

access to all the evidence regarding a Guantanamo detention, that the client’s attorney will be

unable to represent his client to the best of his abilities, without all the evidence, which is clearly

a violation of the Rules of Professional Conduct. Model Rule 1.1 states that “[a] lawyer shall

provide competent representation to a client. Competent Representation requires the legal

knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”44

Given the circumstances, these attorneys have no choice but to violate this rule. These attorneys

cannot possibly be expected to have made the preparation reasonably necessary for

representation of the detainee when they are not allowed access to the all the information to help

them prepare their case for the detainee. Given the many obstacles just in regards to the

discovery, the attorney and the detainee are disadvantaged from the beginning of the process.

Another obstacle faced by attorneys is attorney-client privileged communications. At one

point during Katyal’s and Swift’s representation of Hamden, they suggested he take notes of

41 Id. at 949d(f)(1), (B)(i)(ii). 42 Id. at 949d(f)(2)(C). 43 Id. at 949d(f)(C)(3). 44 Model Rules of Prof’l Conduct R. 1.1 (2002).

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their meetings together. Swift learned that Hamden has been thrown back into solitary

confinement and the Guantanamo Bay Detainee Camp Six (prison camp) Authorities had seized

the notes taken by Hamden that he had made during Swift’s last visit with Hamden at

Guantanamo Bay.45 I was not able to ascertain whether or not Swift or Katyal were able to

retrieve Hamden’s notes. But even if Hamden was returned his notes, attorney-client privilege

had likely been violated. My assumption is that the Guantanamo Bay authorities had the notes

translated, and turned over the translations to some government entity. Additionally, upon

Swift’s first visit to Guantanamo Bay to meet his client, he was wearing his uniform that had his

nametag on it. The guards told him to take off his name tag before meeting with Hamden.46

Swift proceeded to argue with the guard, and said, “Let me get this straight. I am supposed to

represent this guy and not tell him my name?”47 Swift then took a piece of tape from the guard,

placed it over his nametag, but immediately removed the tape once he was inside Hamden’s

cell.48

As if the nametag wasn’t enough, the guards insisted that there be two tables between

Swift and Hamden, to protect Swift and the interpreters from Hamden.49 This seemed

outrageous to Swift, who insisted that Hamden’s handcuffs be removed and the table be

removed.50 Hamden had lost a significant amount of weight during his detainment, had no

means of obtaining a weapon to use against the interpreters or Swift; he was clearly not a threat

to anyone in the room. These conditions help to facilitate everything but trust between an

attorney and detainee-client. The case of Charles Swift and Salim Ahmed Hamdan is just one

45 Vanity Fair, supra note 17, at. 330. 46 Id. at. 335. 47 Id. 48 Id. 49 Id. at 336. 50 Id.

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example of likely hundreds of cases in which the government has infringed upon attorney-client

privilege.

Yet another obstacle an appointed attorney must face is a detainee’s right to self-

representation, which detainees are entitled to under the MCA51. This issue was discussed in a

recent article in the ABA/BNA Lawyers & Manual on Professional Conduct.52 The article

portrays the struggle of Lt. William Kuebler (Kuebler) of the Navy JAG Corps and Maj. Thomas

Fleener (Fleener) of the Army Reserves JAG Corps. Both were assigned to defend Guantanamo

Bay detainees. Each of the attorneys’ clients conveyed that they did not want to be represented,

and did not want to even appear in the proceedings, for fear of legitimizing what they believed to

be “sham” trials.53 Both of these attorneys were assigned prior to Hamdan, and prior to the

MCA, which now provides a right of self-representation to detainees.54 When both Fleener and

Kuebler asked their presiding officers to be removed from the case, as per their clients’

instructions, they were refused. Fleener and Kuebler believed that they were caught between two

conflicting duties: follow the clients’ instructions and remove themselves from the case, or

follow the order of the tribunal, which was to stay on the case in violation of their clients’

wishes.55 The JAG Corps has it’s own version of ABA Model Rule of Professional Conduct

1.16(c), JAG Rule 1.16(b) which requires that “[w]hen ordered to do so by a tribunal or other

competent authority, a covered attorney shall continue representation notwithstanding good

cause for terminating the representation.”56 Both Fleener and Kuebler took their problem to their

licensing states ethics committees in Iowa and Florida; and Keubler sought additional guidance

51 MCA, supra note 1, at 949a(b)(D) 52 Martin Whittaker, Attorneys for Guantanamo Detainees Describe Dilemmas in Representing Distrusting Clients, 23 Law. Man. Prof. Conduct 96, (February 21, 2007) [hereinafter Whittaker]. 53 Id. 54 MCA, supra note 1, at. 949a(b)(B). 55 Whittaker, supra note 51. 56 Quoted in Whittaker, supra note 51, at.

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from the Professional Responsibility of the Navy’s JAG Corps. Both Florida and the Navy JAG

Corps’ committees responded, saying that the lawyers must follow the order of the tribunal, not

their state ethics rules, and defend their client. Both attorneys were thus forced to follow the

instruction of the tribunal, in direct opposition to the wishes and best interests of their clients.

While the current MCA permits self-representation, this right is not absolute. If the

accused fails to conduct himself in a proper manner before the tribunal, or in anyway seeks to

disrupt the proceedings, or fails to comport with the rules of evidence, procedure and decorum,

the accused looses the right of self-representation.57 The tribunal may then appoint defense

counsel for the accused.58 Additionally, the military judge may order an attorney to represent the

detainee in accordance with JAG Rule 1.16(b). When this happens, an attorney must build trust

with a client who does not want a federally appointed attorney, and who can blame them? Many

of the appointed attorneys, like Charles Swift, William Kuebler and Thomas Fleener wear the

same uniform as the camp authorities guarding the detainees in Guantanamo Bay. The attorney

is also acting directly against client instructions when he accepts court-appointed representation.

But again, the attorney is left with no choice. There does not seem to be any recourse for the

attorney, especially when the attorney’s own licensing state, and the JAG Corps are specifically

instructing the attorney to go against the detainee’s wishes, and follow the order of the Tribunal.

The attorney could quit his job, but this seems to be a drastic recourse. If this is the option taken

by the attorney, he will likely have a crisis of conscience: if he is so dedicated to achieving

justice for his detainee client that he would risk losing his job to comport with his client’s

wishes, wouldn’t the client be better off with that attorney providing representation, rather than

another court-appointed attorney who is not willing to risk everything for the client? Once the

57 MCA, supra note 1, at 949a(b)(F)(3)(A). 58 Id. at 949a(b)(F)(3)(B).

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attorney accepts the appointment, he must then work to establishing trust with his client and

maintaining that trust, a seemingly impossible task given all the other obstacles he must

overcome.

C: A Final Example: No Good Deed Goes Unpunished: Attorneys Loosing Their Careers for

Upholding the Rule of Law

In a recent addition of the National Law Journal, there was an article about an attorney

who was “blacklisted” for providing ethical advice on legal issues in regards to detainees.59 The

author of this article, Jesselyn Radack (Radack) speaks from experience. Radack was the DOJ

ethics advisor in the case of the so-called “American Taliban,” John Walker Lindh (Lindh).

Radack wrote this article shortly after the Pentagon’s former deputy assistant secretary, Charles

D. Stimson, attacked law firms for representing Guantanamo Bay detainees. Radack was

contacted by an attorney at the Department of Justice (DOJ) about interpreting Lindh out of the

presence of his attorney. Radack advised the attorney that Lindh should not be questioned

without his attorney present. Apparently, the FBI ignored the advice, and interrogated Lindh

anyway. Radack then advised that the interview may need to be sealed and used only for

intelligence gathering or national security purposes, not for prosecution. She also told the DOJ

that Lindh’s father had hired an attorney for him. Three weeks later, Attorney General John

Ashcroft announced that a criminal complaint had been filed against Lindh, and that Lindh, to

his knowledge had not chosen counsel. Radack asserts that she knows personally that the

Attorney General’s statement was false. Two months later Radack learned that the DOJ Judge

presiding over the matter ordered the production of all DOJ correspondence, including the

interview with Lindh. Additionally, the prosecutor on the case claimed he only had received two

59 Jesselyn Radack, Targeting Lawyers: A Blacklist’s Real Face, The National Law Journal (February 19, 2007). (Not quite sure here- This is a one page article, and the first three paragraphs under subsection C are from the same page and same source).

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emails from Radack regarding her assessment that the FBI had committed ethical violations.

Radack tried to retrieve the emails she had sent, but all had been erased. With the help of

technical support, she was able to retrieve the emails. She gave a copy to her boss, and took

another set home with her, and promptly resigned.

In accordance with the Whistleblower Act, she disclosed all the emails to the media. As

a consequence of the storm that rained down upon the executive branch due to the media

attention provided courtesy of Radack, the DOJ pressured Radack’s private New York law firm

to fire her. The firm placed her on an involuntary leave of absence which then turned into a

constructive discharge. The DOJ was even so bold as to assist the law firm in contesting

Radack’s receipt of unemployment compensation. Anonymous government officials

subsequently branded Radack a “turncoat” in the media, placed her under criminal investigation,

referred her to the state bars in which she was licensed, and put her on the “no-fly” list. She was

never told for what she was being investigated, she was not given access to the bar complaint

because the bar claimed it was “secret”, and the government will neither confirm nor deny that

she is on the “no-fly” list, nor tell her how to be removed from the list. The criminal case was

dropped without charges ever being filed, one bar complaint was dismissed, and the other is still

pending after three years.

The consequences for Radack doing her job, upholding the rule of law and following the

Rules of Professional Conduct for the state in which she was licensed were dire. She lost her

job, and no firm would hire her because of the pending bar complaint. Her reputation was ruined

thanks to the government basically labeling her a traitor in the newspapers. She was eventually

hired three years after being discharged. Radack was not even assigned to represent a detainee.

Her job was to serve as ethics adviser regarding the Lindh case. Nothing more. Radack is an

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example of the government trying to control anyone who is involved in detainee defense, and the

government making an example as to what will happen when an attorney does his or her job too

well. Radack closes the article with an interesting point worth noting; “One of the first less of

law school is that an attorney’s representation of a client does not constitute an endorsement of

the client’s […] views or activities. If it did, then the Bush administration itself would have

trouble finding counsel.”

The last example of an attorney who lost their career is Charles Swift, Hamdan’s

attorney. One week before Swift interviewed with Vanity Fair, he had been sent an email from

the Joint Task Force in Guantanamo, “making almost anything he said about the base and his

client confidential.”60 Swift said it was clear to him that the Department of Defense was going

to come down harder than ever on the detainee defense attorneys, more so than he had ever

imagined.61 It should have been no surprise, especially in the wake of Charles Stimson’s barrage

of harsh rhetoric he aimed at lawyers in law firms who were helping to represent Guantanamo

Detainees. Stimson, in a public statement which he later apologized for making said, “I think,

quite honestly, when corporate C.E.O.’s see that those firms are representing the very terrorists

who hit their bottom line back in 2001, those CEO’s are going to make those law firms choose

between representing terrorists or representing reputable firms.”62 Swift also expressed concern

over the threat of prosecution and how he would pay for an attorney to represent him in light of

the memo by the Department of Defense and the Joint Task Force in Guantanamo that placed a

gag on attorney speech.

60 Vanity Fair, supra note 17, at 341. 61 Id. 62 Id.

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On October 11, 2006, The New York Times ran a very strongly worded and bold editorial

on the subject of Swift’s representation, the MCA, and Swift’s naval “career”.63 The editoral

praised Swift for defying the government by winning his case and for doing his ethical duty in

defending his client and trying to halt the practices in Guantanamo and the practices of the

President and Congress.64 The editorial went even further and highlighted the Navy’s denial of

giving Swift his promotion for which he was entitled, without giving a reason for the denial.65

The editorial suggested, that by denying Swift’s promotion, the government is trying to send a

message to defense attorneys about the consequences of “[t]aking their job, and justice,

seriously.”66

Swift and Radack are just two attorneys who have suffered serious consequences for

doing their job and doing it well. Radack’s job was ethical adviser to the DOJ regarding the

Lindh case. She did her job and was punished for it because the government did not like the

answers she gave. Swift was appointed by the government to represent Hamdan. As an

attorney, it is his job to be ethical in every aspect of representation and in his actions not related

to representation. His job is to uphold the rule of law, even when law seems to be invisible and

evasive, especially in the nether land of Guantanamo Bay.

VI: WHERE DO WE GO FROM HERE?

What is the next step for attorneys, lawmakers, politicians and everyone else committed

to finding justice for the detainees? These people have achieved many victories for the

detainees, in and out of court, in a seemingly never-ending circular battle with the Executive and

Congress. Neither the detainees nor their attorneys should, at least in the near future, view any

63 Id. at 330. 64 Id. 65 Id. 66 Id.

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victory as the end of a long battle. Whatever justice those attorneys achieve, whatever rights are

gained through these victories, the government will likely find some way to chip away at those

rights. But despite the odds, these attorneys must continue to seek justice and uphold the rule of

law, and break through all the barriers that the Executive and Congress throws their way. Some

politicians and attorneys are more “fired up” then ever, in view of the Hamdan victory and the

subsequent passage of the MCA, and are doing what they feel to be morally and ethically right;

pressing on, and waging war against the government.

In the wake of Hamdan and the MCA, the JAG officers use the term, “‘Alice in

Wonderland’” to describe the ever changing rules coming at them from the Department of

Defense.”67 Neal Katyal is trying to figure out his next move, in light of the recent Court of

Appeals decision, Lakhdar Boumediene v. George W. Bush, declaring the MCA constitutionally

valid.68 Katyal also has to deal with the gag that has been placed upon almost everyone who

dealt with Hamdan, but will likely strive to make another trip to the Supreme Court in defense of

detainees’ rights.69 In the meantime, Katyal has written numerous scholarly articles, including

one in which he outlines a path for the legal profession to take, to work together to achieve

justice and uphold the rule of law.70 Katyal discusses his struggle with arguing before the

Supreme Court, and suggests that reform should begin in the law schools. Katyal was not very

relatable, and utilized the help of Gerry Spence, an actor, to help him work on perfecting his

oratory skills so that he would be a success in Court.71 Kaytal said that law schools focus too

much on substantive law, and the atmosphere of competition that law schools create places

everyone in a race for the best grades and best jobs, which does not foster an environment for the

67 Vanity Fair, supra note 17, at 341. 68 Labaton, supra note 18, at A1. 69 Vanity Fair, supra note 17, at 341. 70 Legal Academy, supra note 34. 71 Id. at 117.

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development of legal theory and ideas, which is exactly what he believes the detainees need;

people working in groups, exchanging and improving upon ideas in the best interest of justice

and law.72

Additionally, Katyal suggests that there needs to be a major change in the Office of Legal

Counsel (OLC), an institution employed by the executive branch to carefully interpret the

Constitution and provide legal advice.73 He believes the OLC has “failed miserably” in recent

years, “telling the President only what he wants to hear.”74 In another article by Katyal, he

suggests a remedy to bring the OLC back on the right track; “[] splitting the OLC into two

separate entities, one to advise and the other to adjudicate. That split, which tracks the division of

functions previously reposed in the Solicitor General (who used to both advice and litigate), is

one way to restore some of the OLC’s independence.75 Finally, Katyal addressed the Executive

and Congress, and said that even though both branches are under pressure to appear tough on

terror, “they should recognize that abdicating their oaths to the Constitution and rushing

legislation through for political gain will unfairly deposit the entire weight of constitutional

compliance on the courts.76 Lastly, Katyal stresses the necessity of judicial independence in the

aftermath of Hamdan. He says that the courts, “must continue the practice invigorated by

Hamdan: close scrutiny of executive claims, and particularly of assertions that the structural

features of his office permit the President to disregard Congress.”77 He emphasizes the

fundamental importance of separation of powers and judicial review. It’s not often that an

attorney gets to argue Marbury v. Madison during his legal career, especially 200 years after

72 Id. 73 Id. at 115. 74 Id. 75 Neal Kumar Katyal, Legislative Constitutional Interpretation, 50 Duke L.J. 1335, at 1378. 76 Legal Academy, supra note 34, at 115. 77 Id. at 115, 115.

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Marbury.78 Additionally, he quotes Chief Justice Roberts on the role the courts must take in the

interpretation of treaties, which are the which are an integral part of the “supreme Law of the

Land”79: “If treaties are to be given effect as federal law under our legal system, determining

their meaning as a matter of federal law ‘is emphatically the province and duty of the judicial

department, headed by ‘one supreme court’ established by the Constitution.80

In addition to the suggestions put forth by Katyal on how best for the legal profession and

the government to proceed in the aftermath of Hamdan and the MCA, lawmakers have an

important role in upholding the rule of law. NGO’s such as human rights organization must

continue to act on behalf of detainee rights. They must not be defeated by the setbacks inflicted

upon them by the Executive and Congress. In early February of this year, Senate Democrats, and

Republican Senator Arlen Specter endorsed the introduction of new legislation restoring habeas

rights for the Guantanamo detainees.81 In Justice Rogers dissent for Lakhdar Boumediene v.

George W. Bush, she says, “[p]rior to the enactment of the [MCA], the Supreme Court

acknowledged that the detainees held at Guantanamo had a statutory right to habeas corpus. The

MCA purports to withdraw that right but does so in a manner that offends the constitutional

constraint on suspension [of the habeas petition].”82 Judges, House and Senate members must

continue in this quest for justice in obtaining detainee rights, even though they may be in the

minority.

Another avenue to take in regards to permitting lawyers to uphold the rule of law is for

these lawyers’ state bar ethics committees to actually support their decisions to defend their

clients’ best interests, even if those interests are disobeying the orders of the tribunals to

78 Vanity Fair, supra note 17, at 333. 79 U.S. Const. art. VI, cl. 2. 80 Legal Academy, supra note 34, at 116. 81 Labaton, supra note 18, at A17. 82 Id.

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represent the detainee, notwithstanding a showing of good cause for withdrawing from the case,

and the detainees’ right to self-representation under the MCA.83 Government appointed defense

attorneys might be more inclined to follow their clients’ instructions if they did not have to fear

reprisal from both their state bar and the federal government. With support from their ethics

committees, volunteers and NGO’s, government appointed defense attorneys will be more likely

to pursue their client’s objectives, and repeatedly, even in the face of defeat, continue to defy the

governments’ unconstitutionally and ethically unsound actions, and fight for detainees’ rights

and uphold the rule of law.

VII:CONCLUSION

Government appointed defense attorneys have a difficult journey ahead of them. They

must fight to uphold the rule of law and seek justice, however well she may disguise herself in

Guantanamo Bay, Cuba. These attorneys, with the help of thousands of people from law firms

working pro bono, law students, professors, politicians, and NGO’s, have waged a courageous

battle against the Executive and Congress, and many have suffered for it. But Americans must

not let these attorneys and people who strive to find justice for the detainees to become

discouraged, and wave the white flag of surrender to the government, even when defeat may

seem inevitable. Every time a battle is won for detainee rights, the government seems to take the

victory away, but that will not always be the case.

Attorneys also face an untenable conflict: following the orders of the military tribunals,

or following the instructions of their client. Professor Katyal, in concluding his article, Hamdan

v. Rumsfeld: The Legal Academy Goes to Practice84 suggests that these attorneys should exercise

personal judgment in regards to this conflict when he quotes from the Model Rule of

83 MCA, supra note 1, at 949a(b)(D) 84 Legal Academy, supra note 34.

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Professional Conduct 2.1, saying that the practice of law, especially in regards to seeking out

justice in Guantanamo, must not be completely separated from morality85:

“In representing a client, a lawyer shall exercise independent professional

judgment and render candid advice. In rendering advice, a lawyer may refer not

only to law but to other considerations such as moral, economic, social and

political factors, that may be relevant to the client’s situation.”86

But for an attorney to both follow his conscience and the client’s instructions could mean great

repercussions for his career. These are risks that some attorneys, like Jesselyn Radack, Charles

Swift, and Neal Katyal are willing to take; and hopefully others are too. If they continue to fight

for justice and upholding the rule of law in Guantanamo, eventually, they will ultimately prevail.

85 Id. at 119. 86 Id. at 119, quoting, Model Rules of Prof’l Conduct R. 2.1 (2002).

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Documents

Waging War Against the Executive and Legislative Branches