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 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.
