Waging War Against the Executive and Legislative Branches: Federally Appointed. Attorneys Upholding the Rule of Law in Guantanamo Bay, Cuba.

Transcription

1 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 combatants 1 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. 1

2 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, 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, (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]. 2

3 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, 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 , 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 (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, U.S.-Cuba T.S. No Al Odah v. U.S. supra note. 4, at Id.at

4 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 possible 10. 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, ordered the Pentagon to halt the trial of Hamdan, saying that the military commissions 8 Rasul v. Bush, 124 U.S (2004). 9 Hamdi v. Rumsfeld 542 U.S. 507 (2004). 10 U.S. Department of Defense, Order No , July 7, 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. 4

5 (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. Rumsfeld 14, 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 A Washington Post Homepage, supra note 2, at Id. 16 Hamdan v. Rumsfeld, 126 S. Ct (2006) [hereinafter Hamdan]. 17 Marie Brenner, Taking on Guantanamo, Vanity Fair, March 2007, pgs , at 330 [hereinafter Vanity Fair]. 5

6 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 Corpus 19 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 invasion 23. 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. 6

7 additionally found that habeas relief does not extend to foreign citizens detained outside of U.S. Jurisdiction 24. The Military Commissions Act of 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 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 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). 7

8 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 Id. 31 Id. 32 Id. at

9 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 cocounsel 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 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

10 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). 10

11 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). 11

12 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 Id. at Id. 48 Id. 49 Id. at Id. 12

13 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 selfrepresentation, which detainees are entitled to under the MCA 51. 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 Quoted in Whittaker, supra note 51, at. 13

14 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). 14

15 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). 15

16 s from Radack regarding her assessment that the FBI had committed ethical violations. Radack tried to retrieve the s she had sent, but all had been erased. With the help of technical support, she was able to retrieve the s. 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 s 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 16

17 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 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 Id. 62 Id. 17

18 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 Id. 65 Id. 66 Id. 18

19 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 Labaton, supra note 18, at A1. 69 Vanity Fair, supra note 17, at Legal Academy, supra note Id. at

20 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 Id. 75 Neal Kumar Katyal, Legislative Constitutional Interpretation, 50 Duke L.J. 1335, at Legal Academy, supra note 34, at Id. at 115,

21 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 U.S. Const. art. VI, cl Legal Academy, supra note 34, at Labaton, supra note 18, at A Id. 21

22 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 Practice 84 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

23 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 morality 85 : 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 Id. at 119, quoting, Model Rules of Prof l Conduct R. 2.1 (2002). 23

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