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Guantanamo Bay and the Conflict of Ethical Lawyering Guantanamo Bay and the Conflict of Ethical Lawyering Dana Carver Boehm* ABSTRACT The Guantanamo Bay military commissions have been the subject of intense national and international debate since they were announced months after the September 11th attacks. This important debate largely has focused on the perennial tension between liberty and security on the one hand and the somewhat technical legal questions regarding the constitutionality of prescribed procedures on the other. As significant as these issues are, the discussion generally has ignored an element of the military commissions that profoundly shapes how national security, civil liberties, and the experience of criminal justice actually occurs: the way that lawyers charged with prosecuting and defending these cases pursue their professional duties as lawyers. This Article considers the unique institutional identities, organizational context, ethical obligations, and professional incentives of the commissions’ military lawyers, analyzing how they shape and are shaped by participation in the Guantanamo Bay military commission system. This analysis is important not just as a framework for understanding the troubled history of the commissions, nor only as an interesting case study of organizational dynamics and identity theory. Rather, a close look at the institutional identities, ethical obligations, and professional incentives of the military commission lawyers reveals that the military commission system is in desperate need of reform not simply on the basis of constitutional concerns, but on the basis of legal ethics. This Article argues that the institutional identity of the Judge Advocate General’s Corps (JAG) lawyers who operate the military commission system influences these lawyers’ response to the challenging * Dean’s Scholar and Visiting Researcher, Center on National Security and the Law, Georgetown University Law Center. My thanks to William Alford, David Cole, Peter Conti-Brown, David Glazier, Victor Hansen, Philip Heymann, David Luban, Thomas Morgan, and Stephen Vladeck for their helpful comments, and to the many lawyers involved in prosecuting and defending alleged terrorists who agreed to be interviewed for this Article. 283 284 PENN STATE LAW REVIEW [Vol. 117:2 ethical issues and professional pressures inherent in military commission terrorist prosecution. This analysis—based in part on interviews with JAG and civilian prosecutors and defense attorneys—documents a problem not yet addressed in the scholarly discussions of military commissions: that the commissions are structured such that JAG lawyers, a group institutionally identified with the highest standards of ethical conduct, are effectively discouraged from adhering to those standards. Although the courts-martial system in which these lawyers generally operate is not without its own ethical pressures, the unique dynamic present within the commission system effectively discourages the type of ethical conduct these lawyers have traditionally viewed as their highest priority, including zealous representation of clients and the impartial administration of justice. This Article documents the pressures faced by the commission lawyers and their causes, foremost among which is the highly politicized nature of the commission system. Recognizing and understanding how these often subtle pressures affect the military commission system is important because, taken cumulatively, these pressures increase the likelihood of conviction in ways that procedural reforms at the focus of academic, congressional, and executive debates have not addressed. Table of Contents INTRODUCTION ................................................................................................. 285 I. THE HISTORY AND STRUCTURE OF MILITARY COMMISSIONS ............... 290 A. The First Guantanamo Bay Military Commission System: Established by Military Order ...................................................... 290 B. Congress Replaces the Bush Tribunal System with the Military Commissions Acts of 2006 and 2009 ............................. 291 1. Military Commissions Prosecution ........................................ 292 2. “Revamp”: The Obama Administration and the Military Commissions Act of 2009 ...................................................... 294 C. The Military Commission System Structure ................................ 295 1. Military Commission Judiciary .............................................. 296 2. Role and Responsibilities of the Convening Authority ...... 299 3. Office of the Chief Prosecutor ............................................... 302 4. Office of the Chief Defense Counsel ..................................... 303 II. OBSTACLES TO ETHICAL COMMISSION LAWYERING ............................. 305 A. Professional Independence and JAG Institutional Identity .......... 307 B. Ethical Challenges of the Office of the Chief Prosecutor ........... 313 1. The Problem of Prosecutorial Volunteerism .......................... 314 C. Ethical Challenges in Applying the Brady Framework in the Commission System ..................................................................... 316 2012] GUANTANAMO BAY AND THE CONFLICT OF ETHICAL LAWYERING 285 1. Professional Disincentives for Raising Ethical Challenges .............................................................................. 323 D. Ethical Challenges of the Office of the Chief Defense Counsel ........................................................................................ 326 1. Ethical Challenges in Operating Within a Chain of Command ............................................................................... 328 2. Ethical Challenges in Military Lawyering ............................. 330 3. Professional Pressures Inherent in Guantanamo Lawyering .............................................................................. 334 III. THE PATH AHEAD ................................................................................. 341 CONCLUSION .................................................................................................... 347 INTRODUCTION The prison at Guantanamo Bay and the terrorist suspects it houses have been a lightning rod in U.S. politics, legal scholarship, and jurisprudence for the past decade. Since January 2002, when the first group of detainees arrived, lawyers have been engaged in a frequently litigious exploration of the legal problems presented by the capture, detention, and prosecution of the Guantanamo Bay detainees. Even before learning their clients’ names, lawyers worked to win these detainees constitutional protection through the federal courts. In the ten years since September 11th, these detainees have spawned multiple acts of Congress,1 a significant number of White House executive orders,2 and at least four groundbreaking U.S. Supreme Court opinions.3 Notably, the quest for a legitimate legal process to detain, prosecute, and imprison these alleged terrorists has resulted in the creation of an entirely new criminal justice system: the military commissions.4 These commissions have themselves provoked significant and prolonged debate. But that debate has centered on the commissions’ (un)constitutionality, addressing such issues as the process due to alleged 1. See, e.g., Military Commissions Act of 2009, 10 U.S.C. § 948a (2006 & Supp. 2009); Supplemental Appropriations Act of 2009, Pub. L. No. 111-32, 123 Stat. 1859 (2009); Military Commissions Act of 2006, 10 U.S.C. § 948a (2006); Detainee Treatment Act of 2005, 10 U.S.C. § 801 (2000 & Supp. 2005). 2. See, e.g., Exec. Order No. 13,491, 74 Fed. Reg. 16 (Jan. 27, 2009); Exec. Order No. 13,492, 74 Fed. Reg. 16 (Jan. 27, 2009); Exec. Order No. 13,493, 74 Fed. Reg. 16 (Jan. 27, 2009). 3. See Rasul v. Bush, 542 U.S. 466 (2004); Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Hamdan v. Rumsfeld, 548 U.S. 557 (2006); Boumediene v. Bush, 553 U.S. 723 (2008). 4. The military commission system was established first by presidential fiat. See Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism, 66 Fed. Reg. 57,833 (Nov. 16, 2001). It was later established through congressional action. See 10 U.S.C. § 948a (2006 & Supp. 2009). 286 PENN STATE LAW REVIEW [Vol. 117:2 terrorists, the applicability of international law, and, more fundamentally, the purported trade-offs between national security and individual liberties that many suggest inhere to the commissions’ structure.5 While the commissions’ constitutionality and fairness remain hotly contested,6 victory must be declared, at least formally, for those who have advocated their continued existence. Congressional action has blocked detainee prosecution in federal court, and the commission system has produced seven convictions in the over eight years that it has been active.7 It now prepares to dispense justice to the “worst of the worst”8 among the Guantanamo detainees, Abd al-Rahim al-Nashiri, the alleged perpetrator of the U.S.S. Cole bombing, and Khalid Sheikh Mohammed and his four alleged 9/11 co-conspirators.9 These new prosecutions—the first of which the government seeks the death penalty—will continue to highlight the controversies and questions that the commission system and its defenders have not, even now, resolved. 5. See, e.g., Charlie Savage, Accused 9/11 Mastermind to Face Civilian Trial in N.Y., N.Y. TIMES, Nov. 13, 2009, available at http://nyti.ms/QSSi5s (covering contentious debate between ACLU and other civil liberties groups and government opponents to terrorist suspect trials
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