Was the Army’s first-ever lead special trial counsel fired for urging lawyers to act ethically?

 I recently read a story that, if accurate, is disturbing.  According to the story, published in The Hill, Brigadier General Warren Wells was relieved of his position as the Army’s Lead Special Trial Counsel over a single decade-old email in which he encouraged army lawyers to do their jobs zealously and ethically.  The message, sent back in 2013, encouraged a group of fellow defense attorneys to uphold their duty to represent their clients zealously and read in part, “hopefully a Soldier will be able to get a fair trial. You and your teams are now the ONLY line of defense against false allegations… [y]ou literally are the personal defenders of those who no one will now defend, even when all signs indicate innocence.”

Maybe I am missing something - after all, this is a story that flew under my radar - but it seems to me that this is what we expect, and should expect, from all lawyers - particularly criminal defense lawyers, and, therefore, that getting fired over this message sends a wrong impression about what is important to the leaders of the military justice system.  

More criticism of the political ad in South Carolina

I just posted a long comment on the political ad in South Carolina attacking a candidate because he used to do criminal defense work (see below).  Thanks to the Legal Ethics Forum, here is yet another article criticizing the ad.

Republican Governors Association launches campaign against political candidate based on the fact the candidate is a lawyer

The Republican Governors Association has launched an ad campaign in support of the reelection of Gov. Nikki Haley that should be of concern to all lawyers.  The campaign attacks State Senator Vincent Sheheen because he represented people accused of crimes.

This is reminiscent of the similarly shameful attacks made by politicians and others in the public eye against lawyers who represented detainees at Guantanamo or death row inmates. As you probably remember, just recently the recommendation to appoint Debo Adegbile’s to head the Civil Rights Division of the Department of Justice was derailed because he had represented a death row inmate when he was a lawyer at the NAACP Legal Defense Fund.  Likewise, a few years ago, Liz Cheney and others conducted a vigorous campaign against the hiring of lawyers who had represented Guantanamo detainees.

To its credit, the South Carolina Bar Association has stepped forward to denounce the recent campaign ad.  South Carolina Bar President Alice Paylor has been quoted as saying that “What they’re attacking is the whole basis for the U.S. and the U.S. Constitution. According to them, I guess everyone accused of something is automatically guilty.”  The ABA Journal.com has more on the story here.

Professor Jonathan Turley has commented that the trend to attack political candidates for the fact that they represented criminal defendants is a "truly vile and McCarthyist trend that seeks to punish professional working within our criminal justice system." (Interestingly, the New York Times also used a reference to McCarthyism in 2010 when discussing the attacks on Guantanamo detainee lawyers.  See here).

I agree; and for that reason I am going to copy below part of my comments from 2010 when the debate over the Guantanamo detainees was going on.  You can click on the dates to read the original comments and see more links.


March 7, 2010

By now I am sure you have heard the controversy and debate generated by a video that criticizes the Obama administration for hiring lawyers for the Department of Justice who had represented Guantanamo detainees in the past. The video, released by a group called Keep America Safe (whose board members include Elizabeth Cheney), questions the lawyers’ loyalty to the United States, calling the Department of Justice "Department of Jihad" and asking “Whose values do they share?"

In a way, we should not be surprised by this kind of attack since the previous administration spent a lot of efforts critizing, attacking and trying to control or punish attorneys who worked to help Guantanamo detainees. A lot of attention was given back then to comments challenging the “loyalty” of attorneys who volunteered for such work. There is a lot of literature out there you can find to get more information about that, including a short article by Jesselyn Radack called “A Blacklist’s Real Face” published in The National Law Journal on February 19, 2007 in which the author describes her own experience of retaliation after she exposed unethical conduct by lawyers in the DoJ for which she was branded a traitor and supporter of terrorism. Sounds familiar?

Now, Liz Chaney and her friends are back at it again calling the lawyers who formerly represented detainees “The Al Qaeda Seven.”

The attack on the administration and on the lawyers themselves is ... based on just plain ignorance of what it means to be a lawyer and to believe in and defend the rule of law and the Constitution. I am happy to see that it has been strongly denounced by so many so quickly, including by lawyers prominent in the previous administration.

In Liz Cheney’s world, detainees would not have any rights. She has decided they do not deserve to be afforded due process. We should create sham judicial proceedings or "kangaroo courts" that would deny due process rights in the name of expediency. In her world, we should deny rights to terrorism suspects, at least in part, because terrorists do not respect the rights of others.

But, here is the thing, that is what makes them terrorists. Liz Cheney would want us to do the same. She wants us to be more like them. It is her who is expressing anti-American values!

As I said in a previous post, I greatly admire attorneys who make a commitment to represent truly unpopular clients. It takes courage, determination and conviction and represents the best of our profession.

I commend the administration for recognizing the value of commitment to doing the right thing, to defending the rights of the accused, to defending the constitution and that which makes our legal system fair and valid.....

[The original post has the video of the ad that started the whole controversy.]


March 8, 2010

A group of well-known conservative lawyers have signed on to a letter chiding Liz Cheney as well. The letter states, in part:

"The past several days have seen a shameful series of attacks on attorneys in the Department of Justice who, in previous legal practice, either represented Guantánamo detainees or advocated for changes to detention policy. As attorneys, former officials, and policy specialists who have worked on detention issues, we consider these attacks both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications. . . . . To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit. Such attacks also undermine the Justice system more broadly. In terrorism detentions and trials alike, defense lawyers are playing, and will continue to play, a key role. " . . . .



March 10, 2010

Stephen Colbert interviews a Guantanamo detainee defense lawyer.

Prof Andrew Perlman (Suffolk Univ Law School) has posted a short, but very good comment on the issue (available here), in which he argues a similar position to the one I tried to argue in my original post on this whole affair. His argument is as follows: "We should explicitly acknowledge and embrace the idea that lawyers who represent unpopular clients are endorsing a particular set of values. Those values happen to include (among others) safeguarding foundational procedural protections, the need for quality representation in an adversarial system, and ensuring that the government pursues its important work within the bounds of the law. Lawyers who endorse those values should be praised, not criticized. In fact, those lawyers are ideally suited to work in a government department that is supposed to be committed to the cause of justice. Liz Cheney, therefore, is right about one thing: the work of the "al-Qaeda 7" lawyers does reflect their value judgments. By criticizing those lawyers, however, Liz Cheney is really criticizing the values that those lawyers embraced. And by criticizing those values, which are so foundational to America's system of justice, Liz Cheney (ironically) is the one who appears to be endorsing anti-American ideals."

Meanwhile, more and more articles, posts and op-ed pieces are getting published on this same issue. Here is a list of some of the ones I have seen today. Because there are so many coming out every day, rather than posting anew every time I come accross a new article I will just add it to this list, so keep checking this post if you want the latest.... [Go here for all those links.]


March 17, 2010

Two former Guantánamo detainee lawyers have published an article commenting on Liz Cheney's campaign against the Dept of Justice for employing other former detainee lawyers. The article is available here. In the article, the authors state, in part:

"Cheney . . . should know better. She is a law school graduate and former practicing attorney. Her video contradicts more than 200 years of legal tradition, whereby American attorneys have served as counsel for unpopular clients, often without fee, in order to ensure that our country remains a place where there is "justice for all" — even those deemed our enemies. . . . .

. . . She asks: "Whose values do they share?"

It is hard to imagine a more reckless charge. Well, on second thought, we can think of one. Her video is reminiscent of similar tactics used during one of the darker episodes in American history, when Sen. Joseph McCarthy charged that those who insisted on due process for anyone he accused must be a Communist sympathizer or a closet enemy of the U.S. . . . .We believe history will judge Cheney's behavior as the equivalent of McCarthy's.

Our constitutional system of government requires that we afford due process to defendants even in times of genuine threat to our nation and attacks on our people. The courts depend on the willingness of lawyers to represent those accused of crimes, although their clients may be feared or hated. . . .

The lawyers at the Department of Justice who appeared on behalf of Guantanamo prisoners deserve our admiration and respect, as our country tries to resolve the difficult issues of how we will dispense justice to those considered to be our enemies. They certainly do not deserve to be called "al-Qaida lawyers," be labeled disloyal and unpatriotic or be disqualified from government service."

And to that, I say, "well said!"

Prison commander testifies that government hid microphones in Guantanamo, but no one listened

Yesterday I reported that defense attorneys in the case against the alleged 9/11 mastermind have argued that the US government have been listening in on privileged attorney-client conversations (see here).  Today, reports are coming in that it is true the FBI had hidden microphones inside his compound where lawyers meet prisoners.  However, the army officer in charge of the prison testified that he was unaware of it.   The Miami Herald has the story here.  The Jurist also has a report here.

Defense attorney questions wether US government is disregarding client's right to confidentiality in 9/11 prosecution

On of the defense attorneys in the case against alleged 9/11 mastermind Khalid Sheik Mohammed and four accused co-conspirators in the murder of nearly 3,000 people in the Sept. 11, 2001 attacks argued an emergency motion in a pre trial hearing arguing that unidentified intelligence agencies have channels to listen in on privileged attorney-client conversations. The chief prosecutors denied the allegation.  Go here for more on the story.

Thanks to the Legal Ethics Forum for the link.

Obama administration drops attempt to regulate the representation of Guantanamo detainees

Back in September, I wrote about the Obama administration's attempt to interfere and regulate the representation of Guantanamo detainees. See here. Some time later, a federal court refused to go along. See here. Now comes news the administration has dropped its appeal. Go here for the full story.

UPDATE 11 pm: The SCOTUS Blog has more on the story here.

Should President Obama terminate military commissions?

As President Obama prepares for his second term in the White House, should he put an end to military commissions, used to prosecute captured enemies for war crimes, and finally close Guantánamo?  In the New York Times page Room for Debate five scholars discuss the arguments for and against.  Click on the title of each individual debater's piece to read their full argument.

Judge rejects government's request to change rules on attorney/client communications at Guantanamo

A few days ago I reported that the US District Court for the District of Columbia held a hearing regarding a challenge to new restrictions on lawyers representing Guantanamo Bay detainees. The new restrictions would require in some cases that a lawyer sign a "memorandum of understanding" to continue to be able to meet with a client, making any meetings or communications with a client "subject to the authority and discretion" of the Guantanamo commanding officer.  My original post, which has links to the memorandum and other sources, is available here.

Yesterday, however, in what has been called "a strong rebuke against the government," the judge in the case refused to change the rules that have long governed communication and meetings between Guantanamo Bay detainees and their lawyers.  The judge's opinion is available here.  He agreed with the detainees' counsel, calling the government's effort to modify existing rules an "illegitimate exercise of Executive power."

For more on the story go to the Blog of the Legal Times and the SCotUS blog.

UPDATE 1:22 p.m.: For more go to the Jurist, The New York Times and How Appealing, which has links to eigth different articles on this. 

Court considers changes to rules regarding representation of detainees at Guantanamo -- UPDATED

Last Friday, the US District Court for the District of Columbia held a hearing regarding a challenge to new restrictions on lawyers representing Guantanamo Bay detainees who have had their habeas corpus challenges denied or dismissed. Reportedly, lawyers for detainees argued they are concerned that the federal government is moving to "hamstring" the rights of detainees at the Guantanamo Bay detention center.  According the reports, Chief Judge Royce Lamberth expressed skepticism about the new restrictions, which in some cases require a lawyer to sign a "memorandum of understanding" (MOU) to continue to be able to meet with a client, making any meetings or communications with a client "subject to the authority and discretion" of the Guantanamo commanding officer. A copy of the MOU is available here.  For more (and more links) on this story go the the Jurist and the Blog of the Legal Times.

UPDATE (8/20):  There is another article on the subject in the SCotUS blog.

Comment on Padilla v. Yoo

Yesterday I reported (here) that the Court of Appeals for the 9th Circuit issued an opinion in which it held that John Yoo, one of the legal architects of the Bush administration policy on torture, is entitled to qualified immunity because - according the the opinion - "it was not clearly established in 2001-03 that the treatment to which Padilla says he was subjected amounted to torture.” 

Today, over at PrawfsBlog, the author of an amicus brief in the case on behalf of legal ethics scholars in support of Padilla has posted a brief comment on the case arguing that the court's analysis missed the mark. He also explains that "[a]mong Yoo's objections to Padilla's suit was his view that the suit amounted to a complaint that he gave “incorrect” or “erroneous” legal advice as a government attorney.   The amicus brief responded directly to this contention by arguing that “Yoo did not merely give ‘wrong’ advice in performing customary legal duties," rather "he acted outside of his legal role altogether by participating directly in the formulation of policy that gave rise to the deprivation of [Padilla’s] constitutional rights and by creating legal cover for unlawful detention and interrogation policies.”

You can read the full comment here.

Court of Appeals holds John Yoo is immune from liability for his role in justifying torture

The Court of Appeals for the Ninth Circuit has just issued an opinion holding that John Yoo is immune from a lawsuit by a U.S. citizen who said he was tortured while detained in a military brig.  Yoo, as I am sure you remember, was one of the lawyers who designed the arguments used by the Bush administration to support the legality of its use of torture.  The opinion of the court is available here.

 For more on the story go to the blog of the Supreme Court, The Wall Street Journal law blog, Legal Ethics Forum and the New York Times.

A more interesting question that is not addressed by this case, though, is whether Yoo's conduct was unethical.  There has been a lot of discussion (and there is a lot of literature about it out there) already.

For a great discussion of the story on the role of the attorneys in the Bush administration you should watch the show "Cheney's Law" which is available here, particularly starting with chapter 4, which starts about 25 minutes into the show.  Here are chapters 4, 5, 6 and 7 :

Watch Cheney's Law on PBS. See more from FRONTLINE.

Watch Cheney's Law on PBS. See more from FRONTLINE.

Watch Cheney's Law on PBS. See more from FRONTLINE.

Watch Cheney's Law on PBS. See more from FRONTLINE.

NYT editorial criticizes Obama administration policy on extrajudicial killing

I have been following the critical reaction to the very problematic argument that the Obama administration has inherent (and pretty much absolute) power to order extrajudicial killings.  See here, here and here. 

Today, the New York Times added its voice to the debate.  It criticizes Obama's position in an editorial that starts by stating that "President Obama, who came to office promising transparency and adherence to the rule of law, has become the first president to claim the legal authority to order an American citizen killed without judicial involvement, real oversight or public accountability."  Go here to read the full text.

More comments on Obama administration's policy on extrajudicial killings

A few days ago, I wrote about the Attorney General of the United States' speech in which he tried to explain why it would be OK for the President to order someone to kill you without having a trial or even having charged you with any crime. (See here and here).  Today Johnathan Turley is reporting here that FBI Director Robert Mueller declared before Congress that he simply does not know whether the current policy would allow the killing of citizens in the United States.  Go here for more.

Another comment on Eric Holder's speech

Yesterday I wrote about Eric Holder's speech on the Obama administration's policy on extrajudicial killing.  Professor Jonathan Turley published a longer comment on the subject today which you can read here.

Eric Holder on why it is OK for the President to order someone to kill you

The Attorney General of the United States spent a little time trying to explain why it would be OK for the President to order someone to kill you without having a trial or even having charged you with any crime. But, Jonathan Turley explains, at least "Holder promised not to hunt citizens for sport."

Kevin Underhill takes the speech apart in a piece in Forbes and then again in Lowering the Bar, where he writes, in part that:

The lowlights of the speech, I think, were Holder's promise that no citizen would be blown up unless the government had determined (among other things) "that the individual poses an imminent threat of violent attack against the United States," and his somewhat unusual definition of "due process."

First, it turns out that "imminent" doesn't mean what you think it means (or what the dictionary thinks it means). Rather, the concept "incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States." If you see anything in there that has to do with being "imminent," please let me know. The "future" is a big place, and just because something might be in it does not make that thing "imminent."

Second, Holder did promise that nobody would be killed without "due process." Comforting! But no! Because this also doesn't mean what you think it means. "'Due process' and 'judicial process' are not one and the same," Holder said, "particularly when it comes to national security. The Constitution guarantees due process, not judicial process." Oh. So what process are we due? Executive process. But have no fear, you won't be put on a death list without a "thorough and careful review" of the (secret) evidence against you by the Executive Branch, Holder basically promised. So there's really no need to get those other branches involved. Let's just keep this between us.

Here is a video of the speech.

Detainees' lawyers reply to Liz Cheney's attacks

Two former Guantánamo detainee lawyers have published an article commenting on Liz Cheney's campaign against the Dept of Justice for employing other former detainee lawyers. The article is available here. In the article, the authors state, in part:

"Cheney . . . should know better. She is a law school graduate and former practicing attorney. Her video contradicts more than 200 years of legal tradition, whereby American attorneys have served as counsel for unpopular clients, often without fee, in order to ensure that our country remains a place where there is "justice for all" — even those deemed our enemies. . . . .

. . . She asks: "Whose values do they share?"

It is hard to imagine a more reckless charge. Well, on second thought, we can think of one. Her video is reminiscent of similar tactics used during one of the darker episodes in American history, when Sen. Joseph McCarthy charged that those who insisted on due process for anyone he accused must be a Communist sympathizer or a closet enemy of the U.S. . . . .We believe history will judge Cheney's behavior as the equivalent of McCarthy's.

Our constitutional system of government requires that we afford due process to defendants even in times of genuine threat to our nation and attacks on our people. The courts depend on the willingness of lawyers to represent those accused of crimes, although their clients may be feared or hated. . . .

The lawyers at the Department of Justice who appeared on behalf of Guantanamo prisoners deserve our admiration and respect, as our country tries to resolve the difficult issues of how we will dispense justice to those considered to be our enemies. They certainly do not deserve to be called "al-Qaida lawyers," be labeled disloyal and unpatriotic or be disqualified from government service."

And to that, I say, "well said!" For my previous posts on this subject go (in order) here, here, here, here, here and here.

Meet a Guantánamo detainee lawyer

Here is an interview from a few years ago of an American lawyer who volunteered to represent Guantánamo detainees before the Supreme Court. I don't know if he is one of the lawyers in the middle of the Liz Cheney/"Al Quaeda 7" controversy, but I think the interview is relevant to the discussion. He makes a very eloquent argument for why lawyers who defend unpopular clients do it and, I think, for why we should be praising their work. The interview is only about 6 minutes long.

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In Search of Volunteer Lawyers for Death Row Inmates

In Search of Volunteer Lawyers for Death Row Inmates... Go here for the full story.

More on the controversy over Dept of Justice hiring former detainee lawyers

Here is a segment from last Friday's TV show Countdown with more details on the controversy and the reaction to the video:

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Here is a segment from today's show in which Ken Starr discusses the letter I mentioned in the previous post:

Visit msnbc.com for breaking news, world news, and news about the economy

More debate as to the attacks on the Dept of Justice lawyers

A group of well-known conservative lawyers have signed on to a letter chiding Liz Cheney as well. The letter states, in part:

"The past several days have seen a shameful series of attacks on attorneys in the Department of Justice who, in previous legal practice, either represented Guantánamo detainees or advocated for changes to detention policy. As attorneys, former officials, and policy specialists who have worked on detention issues, we consider these attacks both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications. . . . . To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit. Such attacks also undermine the Justice system more broadly. In terrorism detentions and trials alike, defense lawyers are playing, and will continue to play, a key role. "

The full letter is available here.

Meanwhile, the Blog of the Legal Times is reporting today that "[p]rominent former Department of Justice officials are joining the growing criticism against efforts to question the ethics and loyalty of current DOJ attorneys who, in private practice, had advocated for Guantanamo Bay detainees." Go here for the full story.

For more on this story (and other interesting links) to the Wall Street Journal law blog (March 5 and March 8 story, Politico, and another story in the Wall Street Journal law blog.

The New York Times also published an Op-ed piece (here) that begins thus: "In the McCarthy era, demagogues on the right smeared loyal Americans as disloyal and charged that the government was being undermined from within. In this era, demagogues on the right are smearing loyal Americans as disloyal and charging that the government is being undermined from within."

When you check out these stories don't forget to look at the comments readers have posted about them.