I must register dissent from Jon Adler’s arguments. With due respect, they are typical of the elitist claims by members of the bar that the obligations of the profession trump the sensibilities, and, indeed, the duties, of citizenship.
Jon must refer to the “spirit” of the codes of professional responsibility because, thus far, not even the legal profession, despite the unreservedly Leftist bent of its highly active activists, has had the nerve to suggest that fealty to a body of rules for lawyers is more important than the fealty we lawyers, as American citizens, owe to the United States — including the obligation not to lend aid and comfort to the enemy.
And on that score, Jon, we are not talking about people “subjected to the judicial process.” If these were ordinary criminal defendants — the “accused” for whom our laws require counsel such that we must even pay for them to have it — you would have a point. Lawyers for those defendants are fulfilling a constitutional function that our system says lawyers must fill. Here, however, we are dealing with alien enemy combatants who are in the military system, not the judicial process. They have no right to counsel. They are not U.S. indigents at sea in our civilian civil and criminal courts. They are enemy combatants detained by the military because they are making war on the United States and subjected to military commissions because they have violated the laws of civilized warfare. The lawyers who flock to them are not fulfilling a constitutional mission. They are volunteers — against the public interest.
I saw this brand of elitism ad nauseum as a prosecutor. The organized bar does not like the notion that prosecutors, as executive branch officers, carry out the duties not merely of litigators but of constitutional representatives of the public. Thus, the bar consistently tried to enact rules about, for example, ”contacts with represented persons.” The idea was this: even if the subject of an investigation was not in custody, and thus had no constitutional right either to counsel or to be given Miranda warnings, a federal prosecutor was barred from attempting to interview him (or even allowing a non-lawyer FBI agent to do so) just because the subject had retained a lawyer. Why? Because the legal profession takes the position that as a lawyer admitted to practice in a jurisdiction, a federal prosecutor’s duties to the profession’s standards outweigh his duty as the public’s constitutional officer to do what the constitution permits and exercise the police power in a way that best protects the public.
The legal profession’s view, of course, also makes the prosecutor subservient to the judicial branch — even though an Article II executive branch official is actually the peer of the Article III judge. (As the Supreme Court has conceded, the Framers did not make the judiciary the overseer of our government.) In truth, there are obviously times when the prosecutor must yield to the judge (e.g., in the four corners of a trial, the judge is supreme and the prosecutor must respect the judge’s rulings in the litigation to the extent they do not usurp executive branch discretion); but so too must the judge yield to the prosecutor (judges, for example, have no power to order the prosecutor to conduct an investigation, immunize a witness, or disclose classified information). That is, the legal profession’s rules requiring respect for the tribunal do not trump the prosecutor’s independent duty as a constitutional officer every bit the equal of the judge.
Common sense shows why this is the case. What if the American Bar Association tomorrow pushed through a new disciplinary rule for attorneys that said, ”It shall be unethical for a lawyer to conduct any questioning of a person adverse in interest unless that person is represented by counsel”? Such a rule would mean a prosecutor could neither interview nor cause an agent to interview an arrested suspect — even if the suspect had been given Miranda warnings (and thus knew that he did not have to answer questions without a lawyer present). Such a rule would be ridiculous, precisely because the legal profession is not our highest authority; the Constitution is. And simply because the legal profession makes rules does not mean those rules outweigh more important obligations.
The detainees at Gitmo have no constitutional right to counsel. They are enemy combatants apprehended making war on the United States — which is to say, in the context of this war, waging a jihad designed to defeat the American constitutional system itself, the system on which all our civil liberties depend for their protection.
The detainees, despite the fact that they have no constitutional rights, are given access to assistance in connection with their combatant status review tribunals (by which they get to challenge our right to detain them) and access to military counsel in connection with their military commissions (by which they will be tried).
The legal profession, on its own, has decided that that is not good enough. That’s not the public’s decision, not the law’s decision. It’s the decision made by an elite — law school graduates admitted to practice in various jurisdictions. Lawyers, consequently, have voluntarily flocked to Gitmo to represent the enemy against the United States. Ours is such a great country that we permit them to do that. But the thought that we are not only required to abide that decision but to approve it is absurd.
There is, as far as I am concerned, absolutely nothing wrong with pointing out that the lawyers who are volunteering their skills to represent enemy detainees in wartime are making a decision no one is forcing them to make to use their skills for the benefit of those who have chosen to take up arms against the United States.
It is worth noting that in the history of the United States our military has taken millions of prisoners of war; yet, not one of them, until 2004, had a right to use the U.S. courts as a weapon to challenge his wartime detention. That combatants now have that right is a revolutionary development. That they should have the assistance of counsel, if they can find willing counsel, to help them is even more revolutionary. But the suggestion that we should all be forced to laud, rather than condemn, the voluntary decision by lawyers to donate their services toward this end is astounding. It is far more than Americans should be forced to bear.
The lawyers who choose to represent alien enemy combatant detainees deserve nothing more than our indulgence of that choice. The choice is not praise-worthy. Just because the organized bar and those who dance to its tune have decided to go up in a balloon over that choice does not mean the rest of us are obliged to say: “What swell guys, volunteering their skills for the indigent!” There are lots of indigent Americans and non-Americans who have legal problems; the lawyers we are talking about have, by and large, overlooked those people and made the conscious decision to donate their skills, instead, to enemies of the United States. We let them do it, but there’s no law that says we have to like it.
Furthermore, the big firm lawyers who are voluntarily representing enemy combatants at Gitmo are, almost uniformly, not being paid for their services. They are representing al Qaeda pro bono. That necessarily means paying clients are underwriting their decision to work for the enemy. What is wrong with, say, General Electric, deciding it would rather retain lawyers who would not use its $600/hour to pay for Khalid Sheikh Mohammed’s defense? What is wrong with pointing out to General Electric that that would be a perfectly reasonable, honorable choice to make? (Note: I have no idea whether GE has counsel who are involved in the Gitmo cases; I simply used GE as a hypothetical example of a big company that hires lots of law firms and can make choices about which ones to throw the business to.)
If I had a lawyer, and I learned that lawyer had volunteered his services to al Qaeda detainees at Gitmo accused of trying to kill American soldiers, I would get a new lawyer. I would have no ethical qualms about it, I would sleep quite well, and I would not care in the slightest about whether it offended the “spirit” of the ethical rules for lawyers. I would figure that the lawyer had not cared what I thought about his choice, so why on earth should I care what he, or the legal profession, thinks about mine. Is his choice nobler than mine because it adheres to the ethos of the modern legal profession while mine is based on what I believe is best for our country?
Gratuitously helping those trying to kill us and undermine our freedoms might be someone’s idea of ethics. It is not mine. I wish the Pentagon had not pressured Stimson to apologize or resign. He had nothing to apologize for, much less to resign over.