Lawfare and legal ethics in Guantánamo

Stanford Law Review

Volumn 60, Issue 6, 2008, Pages 1981-2026

  Luban, David ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 49149121491     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (225)

1. The audio interview is on the website of Federal News Radio. Guantanomo Bay: Five Years Later (Federal News Radio broadcast Jan. 11, 2007) (interview by Jane Norris with Charles Stimson, Deputy Assistant Secretary of Defense for Detainee Affairs, in Washington, D.C. (Jan. 11, 2007)), available at http://www.federalnewsradio.com/index.php?sid= 1029698&nid=250. A transcript of the relevant portions of the interview may be found on the website of the radio program Democracy Now!. See Transcript of interview by Amy Goodman with Stephen Oleskey, Partner at WilmerHale, and Emily Spieler, Dean of Northeastern University School of Law (Jan. 17 2007), available at http://www.democracynow.org/2007/1/17/ top_pentagon_official_calls_for_boycott.
2. Id.
3. See, e.g., Charles Fried, Op-Ed, Mr. Stimson and the American Way, WALL ST. J., Jan. 16, 2007;
4. John Heilprin, Views on Detainee Representation Draw Fire; Pentagon Official's Suggestion of a Boycott Is Irresponsible, Legal Groups Say, WASH. POST, Jan. 14, 2007, at A5 (quoting Pentagon spokesman who stated that Stimson's views "do not represent the views of the Department of Defense or the thinking of its leadership" and describing criticism by the head of the American Judicature Society);
5. Editorial, Round Up the Usual Lawyers, N.Y. TIMES, Jan. 13, 2007, at 14;
6. Editorial, Unveiled Threats; A Bush Appointee's Crude Gambit on Detainees' Legal Rights, WASH. POST, Jan. 12, 2007, at A18; Press Release, ABA, Statement by ABA President Karen J. Mathis on Remarks of Cully Stimson, Deputy Assistant Secretary of Defense for Detainee Affairs, in January 11, 2007 Federal News Radio Interview (Jan. 12, 2007)., available at http://www.abanet.org/abanet/media/statement/statement.cfm?releaseid=64.
7. Cully Stimson, Letter to the Editor, An Apology to Detainees' Attorneys, WASH. POST, Jan. 17, 2007, at A18;
8. Pentagon Official Who Criticized Detainee Lawyers Quits, WASH. POST, Feb. 3, 2007, at A6. Mr. Stimson currently works at the Heritage Foundation. His idea may have backfired on its own terms: a lawyer involved in Guantánamo litigation has told me of at least one law firm that was initially hesitant to commit time and resources to participating, but decided after Mr. Stimson's comment that it could not afford not to be part of such a distinguished roster of firms. E-mail from Peter Margulies, Professor, Roger Williams Univ. Sch. of Law, to author (Feb. 2, 2008) (on file with author).
9. Some of these lawyers do not wish to be identified by name, and I will respect their wishes. Many of the lawyers with whom I have spoken tell me that the examples they cite barely scratch the surface; but their obligation to maintain classified information precludes them from describing all of them. A skeptical reader is, of course, justified in withholding judgment about whether these examples barely scratch the surface. I recognize as well that some readers will be skeptical of information originating with the detainees themselves, or for that matter with their lawyers. Suffice it to say that a great deal of independent information about Guantánamo has appeared in news reports. Ultimately, readers must make up their own minds about the credibility of what I report here.
10. Telephone Interview with J. Wells Dixon, New York, N.Y. (Dec. 6, 2007). Joseph Margulies uses the same phrase. JOSEPH MARGULIES, GUANTÁNAMO AND THE ABUSE OF PRESIDENTIAL POWER 204 (2006).
11. Thus, Clive Stafford Smith begins his book about Guantánamo by saying, "From the start, I have wanted the book to focus on the prisoners, so the legal teams get little credit in the text . . . ." CLIVE STAFFORD SMITH, EIGHT O'CLOCK FERRY TO THE WINDWARD SIDE: SEEKING JUSTICE IN GUANTÁNAMO BAY vii (2007). Stafford Smith reiterated this desire in our interview. Interview with Clive Stafford Smith, in Washington, D.C. (Oct. 10, 2007).
12. David Luban, Taking Out the Adversary: The Assault on Progressive Public-Interest Lawyers, 91 CAL. L. REV. 209 (2003).
13. Id. at 210.
14. See generally STUART HAMPSHIRE, INNOCENCE AND EXPERIENCE (1989) [hereinafter HAMPSHIRE, INNOCENCE AND EXPERIENCE];
15. STUART HAMPSHIRE, JUSTICE IS CONFLICT (2000) [hereinafter HAMPSHIRE, JUSTICE IS CONFLICT].
16. HAMPSHIRE, INNOCENCE AND EXPERIENCE, supra note 10 at 186-87.
17. Murray L. Schwartz, The Zeal of the Civil Advocate, in THE GOOD LAWYER: LAWYERS' ROLES AND LAWYERS' ETHICS 150, 153-55 (David Luban ed., 1983).
18. So I have argued most recently in LEGAL ETHICS AND HUMAN DIGNITY 25, 34-37 (2007);
19. see also David Luban, Book Review, 112 ETHICS 156, 157 (2001) (reviewing HAMPSHIRE, JUSTICE IS CONFLICT, supra note 10);
20. David Luban, Book Review, 88 J. PHIL. 317, 318-19 (1991) (reviewing HAMPSHIRE, INNOCENCE AND EXPERIENCE, supra note 10.
21. WILLIAM H. SIMON, THE PRACTICE OF JUSTICE: A THEORY OF LAWYERS' ETHICS 174 (1998).
22. David Luban, Are Criminal Defenders Different?, 91 MICH. L. REV. 1729, 1730 (1993).
23. A well-known study of 516 transcripts of military review board hearings to determine enemy-combatant status at Guantánamo suggests a large number of false positives. Mark Denbeaux, No-Hearing Hearings: CSRT: The Modern Habeas Corpus?: An Analysis of the Proceedings of the Government's Combatant Status Review Tribunals at Guantánamo 35-36 (2006), available at http://law.shu.edu/news/final_no_hearing_hearings_report.pdf. Analysts at the U.S. Military Academy's Combating Terrorism Center have issued a vigorous methodological critique of the Denbeaux study.
24. LTC Joseph Felter & Jarret Brachman, A Response to the Seton Hall Study: An Assessment of 516 Combatant Status Review Tribunal (CSRT) Unclassified Summaries (2007), available at http://www.ctc.usma.edu/CSRT/CTC- CSRT-ANNEX-A.pdf. Neither of these studies considers classified evidence at the hearings, and so - quite apart from the other arguments in the dispute - uncertainty remains about the number of false positives.
25. See, e.g., Barbara Babcock, Defending the Guilty, 32 CLEV. ST. L. REV. 175 (1983);
26. John B. Mitchell, The Ethics of the Criminal Defense Attorney - New Answers to Old Questions, 32 STAN. L. REV. 293 (1980);
27. Abbe Smith, Defending Defending: The Case for Unmitigated Zeal on Behalf of People Who Do Terrible Things, 28 HOFSTRA L. REV. 925 (2000).
28. DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY 60 (1988).
29. Telephone Interview with Anonymous Military Defender A (Nov. 17, 2007).
30. Telephone Interview with J. Wells Dixon, in New York, N.Y. (Dec. 7, 2007). Because of the elaborate security protocols involved in arranging a client/lawyer meeting, bringing the wrong client can cost an enormous amount of time and possibly waste a trip to the island.
31. Telephone Interview with Joshua Dratel, in New York, N.Y. (Nov. 21, 2007).
32. Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
33. MARGULIES, supra note 6, at 167.
34. Id. at 159-70. The most compelling such criticism is found in a declaration by a former CSRT member, Army Lt. Co. Stephen Abraham, available at http://www.scotusblog.com/wp/wp-content/uploads/2007/11/sub-new-abraham- declaration.pdf. See Myron Levin, O.C. Lawyer Argues Against Tribunals, L.A. TIMES, Jan. 5, 2008, available at http://articles.latimes.coin/2008/jan/05/local/me-abraham5 (describing Abraham's decision).
35. 542 U.S. 466 (2004).
36. 28 U.S.C.A. § 2241(e) (2008).
37. Boumediene v. Bush, 127 S. Ct. 3078 (2007) (granting petitions for rehearing and writ of certiorari).
38. As of May 2007, the Office of Defense Counsel was fully staffed with eleven military lawyers: a chief defense counsel, deputy chief defense counsel, and nine others. Interview with Anonymous Military Defender A, supra note 19. The estimate of civilian defense counsel comes from an interview with Clive Stafford Smith, supra note 7. The OMC-D will gain at least five new attorneys in early 2008 and, after four years, has finally hired a defense investigator. E-mail from Lt. Col. Yvonne Bradley (Dec. 19, 2007) (on file with author).
39. MARGULIES, supra note 6, at 9-10. On the beginning of Margulies's involvement, see id. at 7-10.
40. Id. at 158; Telephone Interview with Gitanjali Gutierrez, in New York, N.Y. (Dec. 2, 2007).
41. Interview with Gutierrez, supra note 30. Currently they are represented by Pillsbury Winthrop.
42. Navy Lt. Cmdr. Matthew Diaz, who had become incensed at the treatment of the detainees, described his action as "the right decision, the moral decision, the decision that was required by international law." Brooks Egerton, 'Moral Decision Jeopardizes Navy Lawyer's Career, DALLAS MORNING NEWS, May 17, 2007. He was convicted of crimes, sentenced to six months imprisonment, and dishonorably discharged.
43. MARGULIES, supra note 6, at 146.
44. STAFFORD SMITH, supra note 7, at vii.
45. MARGULIES, supra note 6, at 203; Interview with Gutierrez, supra note 30.
46. Interview with Gutierrez, supra note 30.
47. For example, when Feroz Abbasi was repatriated to the U.K. from Guantánamo, he was given a series of letters he had written to his lawyers at the time of his CSRT hearing. The letters were increasingly frantic because his lawyer was not responding; she was not responding because the letters were never delivered. Interview with Gutierrez, supra note 30; see also MARGULIES, supra note 6, at 204-05.
48. Interview with Stafford Smith, supra note 7.
49. Interview with Gutierrez, supra note 30. For other accounts of the difficulties of client access, see Mark Denbeaux & Christa Boyd-Nafstad, The Attorney-Client Relationship in Guantanamo Bay, 30 FORDHAM INT'L L.J. 491, 502-03 (2007);
50. Martha Rayner, Roadblocks to Effective Representation of Uncharged, Indefinitely Imprisoned Clients at Guantanamo Bay Military Base, 30 FORDHAM INT'L L.J. 485 (2007).
51. Telephone Interview with J. Wells Dixon, in New York, N.Y. (Dec. 10, 2007); Interview with Dixon, supra note 6.
52. See the tenth paragraph of the affidavit filed by CIA officer Marilyn Dorn in the government's opposition to the motion to compel lawyer access to Majid Khan, available at http://balkin.blogspot.com/khan.dorn.aff.pdf. See also Posting of Marty Lederman to Balkinization, You Call It "Torture'; We Call It "Coming into Possession of Classified Information,' http://balkin.blogspot.com/2006/11/you-call-it-torture-we-call-it- coming.html (Nov. 4, 2006).
53. Interview with Gutierrez, supra note 30.
54. E-mail from J. Wells Dixon to author (Dec. 15, 2007) (on file with author).
55. For an important study of the difficulties that language barriers pose to attorney-client relations, see Muneer I. Ahmad, Interpreting Communities: Lawyering Across Language Difference, 54 UCLA L. REV. 999 (2007).
56. Interview with Gutierrez, supra note 30; see also STAFFORD SMITH, supra note 7, at 188 ("[I]ndefinite solitary confinement without a trial was driving some of the prisoners insane."). Dixon emphasizes that almost all the detainees are in complete isolation in Camps Five and Six, which in his opinion were "created to destroy them." Interview with Dixon, supra note 20.
57. Interview with Dixon, supra note 20.
58. Morris v. Slappy, 461 U.S. 1, 12-14 (1983).
59. Strickland v. Washington, 466 U.S. 668, 687-96 (1984) (no ineffective assistance without prejudice). On the "jurisprudence of sleep," see sources cited in DEBORAH L. RHODE & DAVID LUBAN, LEGAL ETHICS 321 (4th ed. 2004).
60. Telephone Interview with Lt. Col. Yvonne Bradley, Swarthmore, Pa. (Nov. 19, 2007). In her civilian life, she worked for a while in Pennsylvania's Capital Defense Resource Center, and she estimates that she has worked on thirty to forty death penalty defenses. Id. Her civilian law office is in Swarthmore, Pennsylvania.
61. E-mail from Lt. Col. Yvonne Bradley to author (Nov. 30, 2007) (on file with author).
62. STAFFORD SMITH, supra note 7, at 192. For a similar story, see MARGULIES, supra note 6, at 183.
63. Interview with Dixon, supra note 20.
64. MARGULIES, supra note 6, at 204.
65. Interview with Dixon, supra note 20.
66. Denbeaux & Boyd-Nafstad, supra note 39, at 500. For a detailed analysis of the protective order and the issues surrounding it, see Brendan M. Driscoll, Note, The Guantánamo Protective Order, 30 FORDHAM INT'L L.J. 873 (2007).
67. Lt. Cmdr. Charles Swift, The American Way of Justice, ESQUIRE, March 2007, at 197.
68. Thus, Martha Rayner reports that guards confiscated the photographs and documents she had brought to her initial client interview to reassure her client that she was bona fide. Rayner, supra note 37, at 489-90.
69. STAFFORD SMITH, supra note 7, at 11-12. Stafford Smith is of Jewish descent, but he did not learn that fact from his father until shortly before the client meeting, so there was no way that the military knew; they were just saying it. Interview with Stafford Smith, supra note 7.
70. Declaration of Thomas Wilner, Al Odah v. United States, CV 02-0828 (CKK), April 20, 2005, para. 11 (copy on file with author).
71. Id. at para. 12.
72. Id. at para. 14.
73. Id. at para. 13. Joseph Margulies reports the same story, but notes that the Pentagon has denied the accusations that interrogators have interfered with the attorneys. MARGULIES, supra note 6, at 204. Charles Swift, Salim Hamdan's detailed defense counsel, also confronted the issue of client suspicion of Jewish lawyers. He said that he always made sure to tell Hamdan when the lawyers he brought with him were Jewish; they would then tell Hamdan about relatives who perished in German concentration camps, to let him know why they were working to get him out of the camp. Telephone Interview with Charles Swift, Atlanta, Ga. (Dec. 10, 2007).
74. Wilner Declaration, supra note 59, at para. 13. Wilner adds that Shearman & Sterling is a firm of "diverse membership," not a Jewish firm. Id.
75. It is clear, I trust, that when I use the word "disparaging" to refer to comments about homosexuality or Judaism, I mean "disparaging in the eyes of a detainee who disapproves of both." I am not endorsing the judgment that such comments are disparaging.
76. See, e.g., United States v Amlani, 111 F.3d 705, 710 (9th Cir. 1997) (finding deprivation of constitutional right to counsel of choice when prosecutor's disparagement of defense counsel caused defendant to switch lawyers); Boulas v. Superior Court, 233 Cal. Rptr. 487, 492-94 (Cal. App. 1986) (holding that defendant's right to counsel of choice was violated where police officers, with the involvement of the deputy district attorney, contacted defendant without his retained counsel present, told him that his attorney was a drug user, and persuaded him to hire someone else; the appropriate remedy was dismissal of the case because the government's conduct was "outrageous in the extreme, and shocking to the conscience'). See generally Martin Gardner, The Sixth Amendment Right to Counsel and Its Underlying Values Defining the Scope of Privacy Protection, 90 J. CRIM L. & CRIMINOLOGY 397, 456 (2000) (examining the role of privacy values underlying the Sixth Amendment and advocating recognition of "violations of Sixth Amendment privacy when the government intentionally or negligently induces deterioration of an accused's relationship with his lawyer").
77. MODEL RULES OF PROF'L CONDUCT R. 4.2 (1983).
78. It forbids contact via non-lawyer agents as well as direct contact. Id. at cmt. 4; 2 RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS, § 99, cmt. b. (2000).
79. Interview with Stafford Smith, supra note 7; Interview with Gutierrez, supra note 30.
80. Interview with Gutierrez, supra note 30.
81. E-mail from Bradley, supra note 50. For clarity, I have slightly changed the original punctuation of this email and added explanatory brackets.
82. Interview with Gutierrez, supra note 30. She adds, "Clients don't understand all the things we're doing until they get out and get on the Internet; then they're stunned."
83. Id. Interrogators' "gifts" to detainees seems like the most likely explanation of the ludicrous episode dubbed "Speedo-gate." Camp authorities wrote a chastising letter to Stafford Smith, accusing him of smuggling Speedo swim trunks and Underarmour underwear to his clients. In a testy reply, Stafford Smith pointed out that he was always searched before entering the cell, and would therefore have to have "stripped off" to smuggle Speedos to his client - who, he pointed out, has no place to swim except his privy. Stafford Smith pointed out that Underarmour is much favored by military personnel at Guantánamo, and that perhaps that is where the investigation ought to focus. For the text of Stafford Smith's letter, see HARPER'S MAG., Dec. 2007, at 25-26.
84. Interview with Gutierrez, supra note 30. It is worth noting that after years of imprisonment, the odds that the detainees still have useful intelligence to gather are quite remote.
85. Interview with Swift, supra note 62.
86. Id. Many incidents similar to those discussed here are detailed in William Glaberson, Many Detainees at Guantánamo Rebuff Lawyers, N.Y. TIMES, May 5, 2007, available at http://www.nytimes.com/ 2007/05/05/washington/05gitmo.html.
87. The acronym "JAG" stands for "Judge-Advocate General," but only the commander of each service's JAG Corps actually bears that title. (Occasionally, to keep the distinction straight, the commander is referred to as "TJAG," "The Judge-Advocate General.") Members of the corps are judge-advocates, but they are commonly called JAGs and I will call them so.
88. An excellent comparison of the court-martial system to the military commissions is David Glazier, Note, Kangaroo Court or Competent Tribunal? Judging the 21st Century Military Commission, 89 VA. L. REV. 2005 (2003).
89. 10 U.S.C. § 827(b)(1) (2000); see C. Peter Dungan, Avoiding "Catch-22s": Approaches to Resolve Conflicts Between Military and State Bar Rules of Professional Responsibility, 30 J. LEGAL PROF. 31, 37-38 (2006). Congress began to reform the military justice system with the Elston Act, Pub. L. No. 80-759, 62 Stat. 604, 627-644 (1948). The UCMJ originated as a Defense Department initiative, which Congress adopted with minor amendments.
90. Michael A. Newton, Modern Military Necessity: The Role & Relevance of Military Lawyers, 12 ROGER WILLIAMS U. L. REV. 877 (2007).
91. For a good description of the role of the Air Force JAG in the theater of operations, see Col. (now Major General) Charles J. Dunlap, Jr., Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts 16-29 (2001), available at http://www.ksg.harvard.edu/ cchrp/Web%20Working%20Papers/Use%20of%20Force/Dunlap2001.pdf.
92. Perhaps the best overall description of the military commissions and their shortcomings is David W. Glazier, A Self-inflicted Wound: A Half-Dozen Years of Turmoil over the Guantánamo Military Commissions, LEWIS & CLARK L. REV. (forthcoming 2008), available at http://ssrn.com/abstract=1019361.
93. See, e.g., THE ARMY LAWYER: A HISTORY OF THE JUDGE ADVOCATE GENERAL'S CORPS, 1775-1995 (2005);
94. FREDERIC L. BORCH, JUDGE ADVOCATES IN COMBAT: ARMY LAWYERS IN MILITARY OPERATIONS FROM VIETNAM TO HAITI (2001).
95. Telephone Interviews with Major Michael "Dan" Mori (Nov. 17, 2007 and Jan. 9, 2008).
96. These are reprinted in THE TORTURE DEBATE IN AMERICA 377-91 (Karen J. Greenberg ed., 2006).
97. On the "war council," see JACK L. GOLDSMITH, THE TERROR PRESIDENCY 22-23 (2007).
98. On the desire to avoid pushback, see Jane Mayer, Annals of the Pentagon: The Memo, NEW YORKER, Feb. 27, 2006, at 32, 32-41, available at http://www.newyorker.com/fact/content/articles/ 060227fa_fact.
99. Memorandum from Brigadier General Kevin M. Sandkuhler, in THE TORTURE DEBATE IN AMERICA, supra note 83, at 383.
100. Id. at 378.
101. See CHARLIE SAVAGE, TAKEOVER: THE RETURN OF THE IMPERIAL PRESIDENCY AND THE SUBVERSION OF AMERICAN DEMOCRACY 279-89 (2007). The two latest rounds of this struggle concern the failed effort by the Bush Administration to enact a regulation requiring JAGs to " coordinate" with civilian lawyers, and resistance by some administration figures to new legislation promoting the four TJAGs from two-stars to three-stars, which would give them greater stature and therefore greater independent clout. President Bush's signing statement to this legislation questioned its constitutionality, and then-DOD General Counsel William J. Haynes II requested an opinion on it from the Office of Legal Counsel in the Justice Department. OLC concluded that the legislation did not automatically confer a third star on the TJAGs, and that they could continue to serve out their terms as two-stars. See Promotion of the Judge-Advocates General Under Section 543 of the National Defense Authorization Act for Fiscal Year 2008, Memorandum from Steven G. Bradbury to Acting General Counsel, Dep't of Defense (Apr. 14, 2008), available at http://www.usdoj.gov/olc/2008/dod-op-re-tjags-041408. pdf.
102. On the "coordination" regulation, see Charlie Savage, Control Sought on Military Lawyers, BOSTON GLOBE, Dec. 15, 2007, available at http://www.boston.com/news/nation/washington/ articles/2007/12/15/control_sought_on_military_lawyers/.
103. On the TJAG promotion, see Scott Horton, Jim Haynes's Long Twilight Struggle, HARPER'S MAG. ONLINE, Feb. 8, 2008, http://www.harpers.org/archive/2008/02/hbc-90002336. A link to Mr. Haynes's request to OLC is available at http://www.harpers.org/media/image/blogs/misc/ dod-gcmemotomil-1deptsecsre3-stargrfortjags012008.pdf.
104. Glenn Sulmasy & John Yoo, Challenges to Civilian Control of the Military: A Rational Choice Approach to the War on Terror, 54 UCLA L. REV. 1815 (2007).
105. JOHN YOO, WAR BY OTHER MEANS: AN INSIDER'S ACCOUNT OF THE WAR ON TERROR 208 (2006).
106. ABA Model Rule 2.1 requires lawyers to offer candid and independent advice to clients; this rule appears in all three sets of rules of conduct for the JAG Corps. See MODEL RULES OF PROF'L CONDUCT R. 2.1 (1983). (Marine Corps JAGs are governed by the Navy's rules.) For discussion of the independent-advice requirement, see LEGAL ETHICS AND HUMAN DIGNITY, supra note 13, at 153-58, 197-204 (2007).
107. Thus, the Joint Chiefs of Staff are statutorily required to advise the president on military matters. 10 U.S.C.A § 151(b) (2008). If a member of the JCS disagrees with the Chairman's advice, he or she may submit the dissenting opinion and the Chairman is required to transmit it to the President. See 10 U.S.C.A. § 151(d)(1) - a portion of the statute that plainly presupposes that the Chiefs' advice is supposed to be independent.
108. Sulmasy & Yoo, supra note 88, at 1821.
109. DAVID HACKETT FISHER, WASHINGTON'S CROSSING 143-44 (2004). For further discussion, see David Luban, On the Commander-in-Chief Power, 81 S. CAL. L. REV. (forthcoming 2008), available at http://ssrn.com/AbstractID=1026302.
110. For an influential critique of the older military justice system, see LUTHER C. WEST, THEY CALL IT JUSTICE: COMMAND INFLUENCE AND THE COURT-MARTIAL SYSTEM (1977).
111. O'Callahan v. Parker, 395 U.S. 258 (1969) (forbidding military trial of soldier for a non-service-connected crime), overruled by Solorio v. United States, 483 U.S. 435 (1987); McElroy v. U.S. ex rel. Guagliardo, 361 U.S. 281 (1960) (forbidding military trial of civilian employee for a noncapital crime); Grisham v. Hagan, 361 U.S. 278 (1960) (forbidding military trial of civilian employee for a capital crime); Kinsella v. U.S. ex rel. Singleton, 361 U.S. 234 (1960) (forbidding military trial of military spouse commiting a noncapital crime); Reid v. Covert, 354 U.S. 1 (1957) (forbidding court-martial of military spouses in capital crime).
112. Interview with Bradley, supra note 49.
113. Interview with Anonymous Military Defender B, at Georgetown University Law Center (Apr. 2005).
114. The phrase and virtually the identical rule appear in the rules of conduct of the Army, Navy, and Air Force, in a clause of Rule 5.4 that does not appear in civilian codes. "Notwithstanding a judge advocate's status as a commissioned officer subject, generally, to the authority of superiors, a judge advocate detailed or assigned to represent an individual member or employee of the Department of the Navy is expected to exercise unfettered loyalty and professional independence during the representation consistent with these Rules and remains ultimately responsible for acting in the best interest of the individual client." U.S. DEP'T OF NAVY, JAG INSTRUCTION 5803.1C, PROF'L CONDUCT OF ATTORNEYS PRACTICING UNDER THE COGNIZANCE AND SUPERVISION OF THE JUDGE ADVOCATE GENERAL, R. 5.4(a) (2004) [hereinafter NAVY RULES]. With slight changes in phrasing, the same rule appears as Rule 5.4(e) of the Army's Rules of Professional Conduct for Lawyers and Rule 5.4 of the Air Force Rules of Professional Conduct and Standards for Civility in Professional Conduct. See U.S. DEP'T OF ARMY, ARMY REGULATION 27-26, RULES OF PROF'L CONDUCT FOR LAWYERS R. 5.4(e) (1992) [hereinafter ARMY RULES]; U.S. DEP'T OF AIR FORCE, TJS-2, AIR FORCE RULES OF PROF'L CONDUCT R. 5.4 (2005) [hereinafter AIR FORCE RULES]. Although the Navy's rule is, by its terms, restricted to representation of members or employees of the Department of the Navy, the same rule applies in the Military Commissions where the clients are captured aliens. See Rules for Military Commissions R. 109, available at http://www.defenselink.mil/pubs/pdfs/ Part%20II%20-%20RMCs%20(FINAL).pdf. One lawyer described Rule 5.4 as his "hole card," to be used if he ever found it necessary to violate military commission procedures. Interview with Anonymous Military Defender B (Dec. 3, 2007).
115. 2 TRIAL OF QUEEN CAROLINE 8 (J. Nightingale ed., London, J. Robins & Co. Albion Press 1821).
116. DAVID MELLINKOFF, THE CONSCIENCE OF A LAWYER 188 (1973).
117. Interviews with Mori, supra note 82.
118. See Jonathan Mahler, Commander Swift Objects, N.Y. TIMES MAG., June 13, 2004, at 42, available at http://query.nytimes.com/gst/fullpage.html?res= 9F0DEFDC131F930A25755C0A9629C8B63&sec=&spon=&pagewanted=5.
119. Interview with Swift, supra note 62. The reference is to Ex parte Quirin, 317 U.S. 1 (1942), which upheld the validity of military commissions established by President Roosevelt to try captured German saboteurs. The case reached the Supreme Court through a challenge filed by the defendants' military lawyer, Col. Kenneth C. Royall.
120. Mahler, supra note 102.
121. For testimony of Ghassan Abdullah al Sharbi, see Transcript of Record at 18, U.S. v. al Sharbi, Session of April 27, 2006, available at http://www.defenselink.mil/news/Apr2006/Vol%203%20-%20al%20Sharbi%20-%20(R. %201-58)%20(27%20Apr%2006%20session)%20(R).pdf.
122. Interview with Bradley, supra note 49.
123. Morris D. Davis, AWOL Military Justice, L.A. TIMES, Dec. 10, 2007, available at http://www.latimes.com/news/opinion/la-oe- davis10dec10,0,2446661.story?coll'la-opinion-rightrail.
124. See Jess Bravin, Dispute Stymies Guantánamo Terror Trials, WALL ST. J., Sept. 26, 2007, available at http://online.wsj.com/public/article_print/SB119076761746939436.html;
125. Josh White, Pressure Alleged in Detainees' Hearings; Ex-Prosecutor Says Pentagon Pushing 'Sexy' Cases in '08, WASH. POST, Oct. 21, 2007, at A15. In late April 2008, Col. Davis testified for the defense in Hamdan's motion to dismiss, or in the alternative, to remove Gen. Hartmann from the case on the basis of unlawful command influence. Military Commission Judge Keith J. Alfred granted the motion to remove Gen. Hartmann. United States v. Hamdan, Ruling on Motion to Dismiss (Unlawful Influence), May 9, 2008, available at http://www.nimj.org/documents/Hamdan%20Hartmann%20Ruling. pdf.
126. See infra Part B.3.
127. STAFFORD SMITH, supra note 7, at 92 (three prosecutorial resignations); Jess Bravin, The Conscience of the Colonel, WALL ST. J., Mar. 31, 2007, at Al (noting the refusal of Lt. Col. V. Stewart Crouch to prosecute).
128. Interview with Swift, supra note 62.
129. Telephone Interview with Military Defender B (Dec. 3, 2007).
130. When the military commissions were initially set up, the Appointing Authority was a designee of the Secretary of Defense charged with appointing the commissions and their personnel, including both prosecution and defense attorneys. See U.S. DEP'T. OF DEFENSE MILITARY COMMISSION ORDER No. 1, at 1-2 (March 21, 2002), available at http://www.defenselink.mil/news/Mar2002/d20020321ord.pdf. The post-MCA military commissions retain this structure, but rename the post "convening authority." See Rules for Military Commissions R. 103(a)(8), 503, & 504, available at http://www.defenselink.mil/pubs/pdfs/ Part%20II%20-%20RMCs%20(FINAL).pdf.
131. Interview with Military Defender A, supra note 19.
132. Full disclosure: I am one of nine legal ethicists who, on a pro bono basis, submitted expert affidavits to the military commission arguing that the structure of the office is improper. The military judge denied a motion to call the ethics affiants as witnesses, on the ground that the conflicts issue is a legal rather than factual issue.
133. See, e.g., 2 RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS 289, 295 §123 cmt. d(iv) & Reporter's Note (2000), (imputation rule for public defender's office is the same as for private law firm). This is the rule in Lt. Col. Bradley's licensing state of Pennsylvania. See Com. v. Westbrook, 400 A.2d 160, 161-62 (Pa. 1979) (holding that public defender's office is "one office" for purposes of conflict of interest rules). Not all states follow this rule and impute conflicts of interest between clients of different lawyers in the same public defender's office; some require case by case analysis of the level of conflict. See, e.g., People v. Brown, 665 N.E.2d 1290, 1309-10 (111. 1996) (finding no imputed conflict - a case by case examination was necessary); State v. Bell, 447 A.2d 525, 527-29 (N.J. 1982) (holding that there is no per se rule of conflict of interest where deputy public defenders represent multiple defendants; however, a potential conflict of interest with significant likelihood of prejudice must be treated as actual conflict without necessity of proving prejudice). However, no state permits multiple representation by lawyers from the same office if the defendants' conflicting interests adversely affect the defenders' performance, and such a representation would most likely be unconstitutional under Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).
134. See AIR FORCE RULES, supra note 98, R. 1.10; ARMY RULES, supra note 98, R. 1.10; NAVY RULES, supra note 98, R. 1.10.
135. AIR FORCE RULES, supra note 98, R. 1.10 cmt.
136. AIR FORCE RULES, supra note 98, para, a; ARMY RULES, supra note 98, R. 8.5(f); NAVY RULES, supra note 98, R. 8.6 para. 8(a).
137. Interview with Military Defender B, supra note 98.
138. See Dungan, supra note 78, at 48-49 and sources cited therein, particularly the canonical Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (stating that courts should "start with the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress"). The preemption issue is far from clear-cut, however, because sometimes the Court has not applied the Rice presumption. See, e.g., Engine Mfrs. Ass'n. v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246 (2004); Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341 (2001). For a critique of the presumption, see Viet D. Dinh, Reassessing the Law of Preemption, 88 GEO. L.J. 2085, 2092-96 (2000). Here, it might be argued on behalf of preemption that the federal interest in regulating JAGs is powerful, and indeed, federal law occupies the entire field of regulation of military officers; there is also a powerful judicial doctrine of deference to the military on military matters. Several factors point to the no-preemption result, however: first, that the military rules of professional conduct regulate JAGs entirely in their capacity as lawyers, not military officers; second, that the JAG rules require lawyers to abide by state rules except in cases of inconsistency, which demonstrates that there is no overall federal intent to displace state regulation of JAGs by federal regulation; and third, that ethics rules for JAGs are not actually implementations of any statute, so congressional intent to preempt state regulation is not simply unclear, it is non-existent.
139. See Dungan, supra note 78, at 50 n. 127.
140. 28 U.S.C. § 530B (2000).
141. Id. § 530B(c); 28 C.F.R. § 77.2(a) (2008).
142. Susan P. Koniak, The Law Between the Bar and the State, 70 N.C. L. REV. 1389 (1992);
143. Susan P. Koniak, When Courts Refuse to Frame the Law and Others Frame It to Their Will, 66 S. CAL. L. REV. 1075 (1993).
144. Memorandum from Col. Dwight Sullivan to Maj. Yvonne Bradley ¶ 4 (Nov. 30, 2005) (on file with author) (detailing defense counsel).
145. There is an alternative, but it doesn't work. The Pennsylvania Rules of Professional Conduct, like many other sets of states' rules, contains a choice-of-law provision that specifies that in practice before a tribunal, "the rules of the jurisdiction in which the tribunal sits shall be applied, unless the rules of the tribunal provide otherwise." Pennsylvania Rules of Professional Conduct R. 8.5(b)(1), 204 PA. CODE § 81.4 (2008). That suggests an easy resolution: even the state rules require deference to the commission rules. However, in 2006 the military commissions had no ethics rules beyond what was set out in counsels' assignment letters - and, as we have seen, that letter required that she follow both state and service rules. Although the service rules state that they prevail, the assignment letter on its face required her to follow both, and it would be hard to read that injunction as a requirement to follow only the service rules, given that following the more restrictive state rules would eliminate the inconsistency between them.
146. Interview with Bradley, supra note 49.
147. Transcript of Record at 142-48, U.S. v. Binyam Muhammad [sic], (Apr. 6, 2006) (No. 05009) (copy on file with author) [hereinafter Muhammad Transcript]. For a riveting narrative description of this hearing, see STAFFORD SMITH, supra note 7, at 98-127.
148. Muhammad Transcript, supra note 129, at 148.
149. Id. at 158, 167.
150. Id. at 184.
151. E-mail from Lt. Col. Yvonne Bradley to author (Nov. 28, 2007) (on file with author).
152. Muhammad Transcript, supra note 129, at 174.
153. E-mail from Bradley, supra note 133.
154. Muhammad Transcript, supra note 129, at 171, 172.
155. See, e.g., Geoffrey C. Hazard, Jr. & Cameron Beard, A Lawyer's Privilege Against Self-incrimination in Professional Disciplinary Proceedings, 96 YALE L.J. 1060, 1070-72 (1987).
156. STAFFORD SMITH, supra note 7, at 127; Interview with Bradley, supra note 49. The word "script" is literal: "I was astounded when I received an e-mail from Colonel Kohlmann attaching the 'script' of the upcoming hearing. It was even called a script and it really was a script: nine pages long, single-spaced, with virtually every word that either side was meant to say in the tribunal." STAFFORD SMITH, supra note 7, at 96.
157. Rules for Military Commissions R. 109(b)(1), available at http://www.defenselink.mil/pubs/pdfs/Part%20II%20-%20RMCs%20(FINAL).pdf.
158. Id., R. 109(b)(3)(A).
159. 10 U.S.C.A. § 949a(a)-(b) (2008).
160. 10 U.S.C.A. § 948k(c)(1)-(2) (2008).
161. Id. § 949b(a)(2)(C).
162. Id. § 949b(b)(2).
163. Id. § 948b(f). The internal quotation is the language of common Article 3 of the Geneva Conventions, and in this clause of the Military Commissions Act, Congress is declaring that the commissions comply with Article 3. That, of course, is not up to Congress to determine. The Geneva Conventions are a treaty, and as such are "supreme law of the land." Under the Constitution, legal questions such as whether the military commissions comply with common Article 3 are solely for the courts to determine. That is why I describe section 948b(f) as wishful thinking. The point is a subtle one, because Congress does have the power to supplant common Article 3 with a later-in-time statute inconsistent with it. Doing so would be politically damaging, because it would make the United States the only country in the world to have opted out of the Geneva Conventions; but as a matter of domestic law, Congress could unquestionably do so. However, section 948b(f) demonstrates that Congress did not mean the MCA to supplant common Article 3; and in that case, while Congress can hope that the military commissions comply with common Article 3, Congress cannot settle the question by fiat, any more than Congress could settle the question of whether a statute is constitutional by declaring it to be constitutional.
164. Perhaps the closest analogue to the preemption issue is Gonzales v. Oregon, 546 U.S. 243 (2006), which rejected the government's efforts to undermine Oregon's assisted suicide statute by removing physicians' power to write prescriptions for the necessary drugs. In Gonzales, the Court rejected the government's argument that the Controlled Substance Act (CSA) preempts state regulation of physicians. It found that the CSA evinced no intent "to regulate the practice of medicine generally," a silence that the Court found "understandable" given that federalism gives the states wide regulatory latitude. Id. at 270. The same can be said of the MCA, which evinces no intent to regulate the practice of law, other than by stipulating the minimum credentials for counsel before the military commissions. In addition, the Court observes that "[t]he structure and operation of the CSA presume and rely upon a functioning medical profession regulated under the States' police powers," id., and we have just seen structural evidence from the MCA that it similarly relies on a legal profession regulated in the ordinary fashion.
165. Rules for Military Commissions R. 109(3)(B).
166. See MODEL RULES OF PROF'L CONDUCT R. 8.5(b)(1) (1983), a prototype followed by many states.
167. See supra notes 107-08 and accompanying text. On the other infirmities of the commissions, see Glazier, supra note 80.
168. Josh White, Australian's Plea Deal Was Negotiated Without Prosecutors, WASH. POST, Apr. 1, 2007, at A7.
169. Interview with Dratel, supra note 21.
170. Press Release, White House, Remarks by the President to the Travel Pool (Mar. 20, 2002), available at http://www.whitehouse.gov/news/releases/ 2002/03/20020320-17.html.
171. Press Release, White House, The Vice President Appears on Fox News Sunday (Jan. 27, 2002), available at http://www.whitehouse.gov/vicepresident/ news-speeches/speeches/vp20020127-1.html. He made similarly inflammatory remarks in 2005. Press Release, White House, Radio Interview of the Vice President by Steve Gill (June 17, 2005), available at http://www.whitehouse.gov/news/ releases/2005/06/20050617-9.html.
172. Gerry G. Gilmore, Rumsfeld Visits, Thanks Troops at Camp X-Ray in Cuba, ARMED FORCES PRESS SERVICE, Jan. 27, 2002, available at http://www.defenselink.mil/news/newsarticle.aspx? id=43817.
173. Interview with Dratel, supra note 21.
174. Id.
175. UCMJ Article 88 reads: Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the Governor or legislature of any State, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.
176. U.S.C.A. § 888 (2008). The important documents in this incident - including news stories and e-mail messages from Col. Davis - may be found as attachments to the defense's motion to disqualify Col. Davis, Defense Motion for Appropriate Relief: Prosecutorial Misconduct United States v. Hicks, No. 002 (Office of Military Commissions 2007), available at http://media. miamiherald.com/smedia/2007/03/25/21/Hicks_Motion_Prosecutorial_Misconduct. source.prod_affiliate.56.pdf.
177. NAVY RULES, supra note 98, R. 3.6(a), which is essentially similar to MODEL RULES OF PROF'L CONDUCT R. 3.6(a) (1983). I use the Navy version because it applies to Major Mori.
178. NAVY RULES, supra note 98, R. 3.6(d). Here also the rule is a substantial counterpart to civilian rules.
179. Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), found that the First Amendment protects a lawyer from being disciplined for stating that his client was an "innocent . . . 'scapegoat'" who was the victim of "crooked cops." Id. at 1034.
180. Interview with Dratel, supra note 21.
181. On the free speech issue, see generally Goldman v. Weinberger, 475 U.S. 503, 507 (1986) (rejecting a First Amendment challenge to military dress code and finding that courts "must give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest"), John A. Carr, Free Speech in the Military Community: Striking a Balance between Personal Rights and Military Necessity, 45 A.F. L. REV. 303 (1998),
182. and Detlev F. Vagts, Free Speech in the Armed Forces, 57 COLUM. L. REV. 187 (1957). On the constitutionality of Article 88, see United States v. Howe, 37 C.M.R. 429, 442 (C.M.A. 1967) (rejecting First Amendment challenge to Article 88). On the other hand, restriction of military members' free speech rights must be justified by a military purpose and narrowly tailored to that purpose. United States v. Moore, 58 M.J. 466 (C.A.A.F. 2003). An interesting parallel might be speech restrictions on military chaplains, given that they, like lawyers, occupy a dual professional status. In Rigdon v. Perry, 962 F.Supp. 150 (D.D.C. 1997), the court refused to apply an anti-lobbying regulation to a military chaplain, commenting that "the compelling interests advanced by the military are outweighed by the military chaplains' right to autonomy in determining the religious content of their sermons especially because the defendants have failed to show how the speech restrictions as applied to chaplains advances these interests." Id. at 162. The parallel to lawyers representing clients is straightforward.
183. Interview with Mori, supra note 82.
184. Id.
185. Interview with Dratel, supra note 21.
186. NAVY RULES, supra note 98, R. 1.7(b).
187. Interview with Dratel, supra note 21.
188. Interview with Bradley, supra note 49.
189. Interview with Dratel, supra note 21.
190. Interview with Mori, supra note 82.
191. 10 U.S.C.A. § 949b(a)(C) (2008).
192. Interview with Dratel, supra note 21; see Transcript of Hearing of March 26, 2007 at 13-23, United States v. Hicks, No. 0002 (Office of Military Commissions 2007), available at http://www.defenselink.mil/news/ Mar2007/US%20v%20David%20Hicks%20ROT%20(Redacted).pdf. Snyder is a Lieutenant Commander in the naval reserve, and had been detailed as Assistant Detailed Defense Counsel by the OMC-D.
193. Id. at 26. For the full context, see id. at 24-29. The reference at page 27 to Dratel's schedule was based on the judge's setting of a hearing schedule that conflicted with other cases that Dratel was involved in. Appellate Exhibit No. 5 at 4-9, United States v. Hicks, No. 0002 (Office of Military Commissions 2007), available at http://www.defenselink.mil/news/ Mar2007/US%20v%20David%20Hicks%20ROT%20(Redacted).pdf; Interview with Dratel, supra note 21.
194. 18 U.S.C.A. § 1001 (2008).
195. Indictment, United States v. Sattar, No. 02 Cr. 395 (JGK) (S.D.N.Y. Nov. 19, 2003), available at http://www.lynnestewart.org/ IndictmentSuperceding.pdf.
196. This problem was pointed out several years ago in an ethics opinion by the National Association of Criminal Defense Lawyers (NACDL), concluding that defenders cannot ethically participate in the military commissions. NACDL Ethics Advisory Committee, Ethics Op. 03-04, at 15 (2003), available at http://www.nacdl.org/public.nsf/2cdd02b415ea3a64852566d6000daa79/ethicsopinions/ $FILE/Ethics_Op_03-04.pdf.
197. Interview with Dratel, supra note 21.
198. Id.
199. CARL VON CLAUSEWITZ, ON WAR 119 (Anatol Rapoport ed. 1968) (1832). This phrase is not an exact quotation, but it captures the gist of what Clausewitz meant and is the most common version of Clausewitz's dictum. The edition cited translates Clausewitz's word Politik as "policy," but it can with equal accuracy be translated "politics."
200. YOO, supra note 89. I reviewed Yoo's book in David Luban, The Defense of Torture, N.Y. REV. BOOKS, Mar. 15, 2007, at 37-40.
201. The phrase seems to have become popular through a paper by Air Force Col. (now Major General) Charles J. Dunlap, Jr., Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts (2001), supra note 79 - although Dunlap himself attributes the word to a 1975 paper by John Carlson and Neville Yeomans, id. at 38 n.5.
202. 2005 NATIONAL DEFENSE STRATEGY OF THE UNITED STATES 5, available at http://www. globalsecurity.org/military/library/policy/dod/nds-usa_mar2005.htm. The quoted sentence appeared in the 2002 National Defense Strategy as well.
203. GOLDSMITH, supra note 84, at 53-64.
204. The theory is developed in Scott Horton, State of Exception: Bush's War on the Rule of Law, HARPER'S MAG., July 2007, at 74-81.
205. Maj. Gen. Charles J. Dunlap, Jr., Lawfare Today: A Perspective, 3 YALE J. INT'L AFFAIRS 146, 148-49 (2008).
206. YOO, supra note 89, at 151.
207. See Declaration of Vice Admiral Lowell E. Jacoby at 5, 8-9, Padilla v. Bush, No. 02 Civ. 4445 (S.D.N.Y Jan. 9, 2003), available at http://www.pegc.us/archive/Padilla_vs_Rumsfeld/Jacoby_declaration_20030109.pdf.
208. To cite only the most uncontroversial document - the Army's own report - Guantánamo interrogations have included a wide variety of sexual humiliations, together with tactics including leading detainees around on leashes and forcing them to do dog tricks, threatening them with military working dogs, prolonged isolation, bombarding them with ear-splitting pop and rap music, and prolonged sleep deprivation. ARMY REGULATION 15-6: FINAL REPORT, INVESTIGATION INTO FBI ALLEGATIONS OF DETAINEE ABUSE AT GUANTÁ NAMO BAY, CUBA DETENTION FACILITY (Apr. 1, 2005) [hereinafter SCHMIDT REPORT], available at http://www.defenselink.mil/news/Jul2005/d20050714report.pdf.
209. Interview with Dixon, supra note 6.
210. 10 U.S.C.A. § 948r(c)-(d) (2008).
211. Scott Shane, David Johnston & James Risen, Secret U.S. Endorsement of Severe Interrogations, N.Y. TIMES, Oct. 3, 2007, at A1.
212. 10 U.S.C.A. § 949d(f)(2)(B) (2008).
213. Josh White & Julie Tate, Charges Against 9/11 Suspect Dropped; His Statements Were the Result of Abusive Interrogation, Officials Say, WASH. POST, May 14, 2008, at A04. Qahtani is now known to the be subject of the first Special Interrogation Plan described in the SCHMIDT REPORT, supra note 187, at 13-21.
214. Interview with Swift, supra note 62.
215. White, supra note 108.
216. Interview with Gutierrez, supra note 30. This has now been confirmed by the government. See Josh White, Dan Eggen & Joby Warrick, U.S. to Try 6 on Capital Charges over 9/11 Attach, WASH. POST, Feb. 12, 2008, at A1.
217. Interview with Swift, supra note 62.
218. Id.
219. E-mail from Lt. Cmdr. (ret.) Charles Swift to author (Dec. 10, 2007) (on file with author).
220. Interview with Swift, supra note 62.
221. The prosecution's legal theory may be that the habeas representations and the military commissions prosecutions are different matters, and the no-contact rule stipulates only that a lawyer cannot speak "about the subject of the representation" with a client who is represented "in the matter." This is the phrasing of ABA Model Rule 4.2, as well as the uniformed services' rules of professional conduct. This reasoning is clearly wrong, however, because the matters overlap both legally and factually. The habeas lawyers are representing prisoners seeking to challenge their detention as unlawful enemy combatants; and a detainee's status as an unlawful enemy combatant is a central issue in military commissions proceedings as well, because it is a jurisdictional requirement of the commissions under 10 U.S.C. § 948d(a) (2000). Alternatively, the prosecution may believe that reinterviews of detainees are authorized by law unless the detainee has actually been indicted and had counsel detailed. In the civilian context, a 1980 Office of Legal Counsel opinion argued that the no-contact rule should not apply to prosecutors until the moment charges are filed, because prosecutorial investigation of crime using informants and undercover agents is authorized by law, and, indeed, is prosecutors' job. 4 Op. O.L.C. (Vol. B) 576 (1980). One Circuit Court has agreed that the no-contact rule does not kick in until indictment: U.S. v. Balter, 91 F.3d 427, 436 (3rd Cir. 1996). And at least two disagree - U.S. v. Talao, 222 F.3d 1133, 1139 (9th Cir. 2000); U.S. v. Hammad, 858 F.2d 834, 839 (2d Cir. 1988) - as does the American Bar Association, in ABA Formal Opinion 95-396 (1995). Hammad points out that the timing of an indictment is in the hands of the prosecutor, who could delay indictment to evade the no-contact rule. Id. But even courts taking the pro-prosecution side on the issue have never held that contact with a represented person is proper after the person has been taken into custody; the kind of contact they have approved is pre-arrest undercover investigation. The point of the no-contact rule - to prevent "overreaching and deception," in the words of 2 RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS, § 99, cmt. b at 71 - is central to the Guantánamo reinterviews. While (verbal) overreaching and deception may be essential tools of intelligence-gathering, these reinterviews are solely for the purpose of criminal trials, not national security, and ordinary legal ethics rules for dealing with represented prisoners should apply.
222. I discuss the differences between the war model and criminal justice models of the war on terrorism in Luban, The War on Terror and the End of Human Rights, 22 PHIL. & PUB. POL'Y Q., 9, 9-14 (Summer 2002).
223. Interview with Dixon, supra note 20.
224. Id.
225. This Article is going to press in early June 2008, before the Supreme Court issues its decision in Boumediene v. Bush, 127 S. Ct. 3078 (2007), on the habeas rights of Guantánamo prisoners. To our frustration, the author and editors are well aware that by the time this Article is in the hands of readers the decision will have issued. Without knowing exactly the contours of the forthcoming decision, it is pointless to speculate in any detail about its effects. But a few broad-brush comments may be helpful to post-Boumediene readers who wish to understand the implications of the decision for the questions raised in this Article. The case will have few implications for military commissions defense lawyers. The implications for the habeas lawyers and their clients vary widely depending on the contours of the Court's decision. If it concludes that the prisoners have no constitutional right to habeas corpus, the habeas lawyers will, quite simply, be out of business unless the next Congress rolls back provisions of the Military Commissions Act of 2006, 10 U.S.C.A. §§ 948-950 (2008), that abolished statutory habeas for Guantánamo inmates. That outcome in Boumediene would remove the prisoners' last recourse within the U.S. legal system. In addition, for reasons explained in this Article, it would cut off the most effective source of information about the prisoners and their conditions of confinement; it would turn Guantánamo back to what it was before Rasul v. Bush, 542 U.S. 466 (2004): a legal and informational black hole whose inmates will have, for all practical purposes, joined the melancholy ranks of the disappeared. The same could be true if the Court finds habeas rights, but only those spelled out in the Detainee Treatment Act of 2005, 42 U.S.C.A. § 2000dd (2008): a limited right of judicial review over whether the government has followed its own procedures, based on a paper record. In that case, the government would very likely argue that there is no longer any reason for the habeas lawyers to meet with their clients, although that assertion would undoubtedly itself be subject to challenge. Finally, if the Court finds a right to substantive habeas review - that is, review of the merits of the prisoners' classification and detention as enemy combatants - lawyer visits to the island would continue, and a protracted litigation process would commence. Both the inmates and their lawyers are well aware that even a process in which the inmates win every legal battle could still result in them spending ten or fifteen years of their lives in custody (for many it has already been almost seven years) as the cases move up the appellate ladder on issue after issue, and back to the bottom on repeated remands. The model would be the opening pages of Bleak House. Of course, habeas review need not be so bad if the government chooses not to follow a scorched-earth strategy of litigation delay. Alternatively, the next administration may well close down Guantánamo: both presidential candidates have promised to do so. Whether closing Guantánamo is better would depend on where the prisoners are moved. Rasul found habeas rights in Guantánamo only because the United States has effective sovereignty over the naval base; if the prisoners were moved to a more remote location elsewhere, habeas jurisdiction might have to be relitigated. And access difficulties to a prison in a country much farther from the United States than Cuba would be catastrophic for legal representation. If, on the other hand, the prisoners were confined within U.S. territory, the access issues could become simpler and a saner litigation process would result. As of early June, Senator John McCain has proposed moving the prisoners to Fort Leavenworth in Kansas, while Senator Barack Obama has not yet stated what he would do with them.