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EthicalIssuesofthePracticeofNationalSecurityLaw_SomeObs.pdf
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Ethical Issues of the Practice of National Security Law:
Some Observations
CHARLES J. DUNLAP, JR. *
I. INTRODUCTION
In the twenty-first century national security law has become among the
most challenging of legal disciplines in which to practice. This
development has several causes, not least that the field embraces the most
fundamental of all governmental functions: the Nation’s security. As the
Supreme Court insisted in Haig v. Agee, 1 “It is ‘obvious and unarguable’
that no governmental interest is more compelling than the security of the
Nation.” 2
Before one examines the ethical conundrums occasioned by a national
security law practice, the linkage of that discipline with developments in
international law deserves comment. The tragedy of the 9/11 attacks and
the resulting wars in Afghanistan and Iraq, not to mention the ongoing
worldwide offensive against terrorists, have underlined not just the axiom of
security being the most “compelling” of governmental interests, but also the
reality that U.S. national security is inextricably intertwined with
international events. In fact, one of the most important reasons for the rise
of national security law has been the growing importance of law generally
in international affairs.
That growth is, in large measure, a reflection of the phenomenon of
globalization. 3 This has significantly impacted the law because the dramatic
* Major General, U.S. Air Force (Ret.), J.D., Villanova University School of Law, 1975; B.A., St. Joseph’s University, 1972. Deputy Judge Advocate General, U.S. Air Force, 2006–2010. Professor
of the Practice of Law and Executive Director, Center on Law, Ethics and National Security, Duke
University School of Law. This Article is based on a lecture presented as part of Ohio Northern Univer- sity’s Pettit College of 2012 Carhart Lecture Series on Legal Ethics, and some matters were previously
discussed by the author in The Ethical Dimension of National Security Law, 50 S. TEX. L. REV. 789 (2009).
1. 453 U.S. 280 (1981).
2. Id. at 307 (quoting Aptheker v. Secretary of State, 378 U.S. 500, 509 (1964)). 3. The International Monetary Fund defines globalization as follows:
Economic “globalization” is a historical process, the result of human innovation and
technological progress. It refers to the increasing integration of economies around the world,
particularly through the movement of goods, services, and capital across borders. The term
sometimes also refers to the movement of people (labor) and knowledge (technology) across international borders. There are also broader cultural, political, and environmental
dimensions of globalization.
1058 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38
increase in world commerce demands internationally accepted legal norms,
instruments, and adjudicatory forums in order to work effectively. The
Economist notes that we now live in “a world where barriers to the transfer
of goods, expertise and people are coming down” and further observes that
in “history, whenever cross-border commerce has flourished . . . so too have
trade lawyers with broad horizons . . . .” 4
The globalization of law, aroused by the globalization of commerce, has
helped revolutionize the practice of international law, 5 with real
implications for a national security law practice. It is no surprise that
Justice Sandra Day O’Connor uses martial language when she says that
“understanding international law is no longer just a legal specialty; it is
becoming a duty.” 6 According to U.S. News & World Report: “Since the
early 1990s, an explosion of international trade, the end of the Cold War,
the rise of the Internet, and proliferation of international tribunals, and the
new global war on terrorism have transformed the field of [international]
law.” 7
The juxtaposition of the “new global war on terrorism” with “an
explosion of international trade” is significant for the national security law
practitioner because history repeatedly demonstrates that major
developments in the economic sphere inevitably shape the conduct of war.
Thus, everything from the development of agriculture (which permitted the
rise of mass armies), to the industrial revolution (which enabled the
mechanization of war), to the information age (whose technology permits
The term “globalization” began to be used more commonly in the 1980s, reflecting
technological advances that made it easier and quicker to complete international transactions—both trade and financial flows. It refers to an extension beyond national borders
of the same market forces that have operated for centuries at all levels of human economic
activity—village markets, urban industries, or financial centers.
There are countless indicators that illustrate how goods, capital, and people, have become
more globalized.
IMF Staff, Globalization: A Brief Overview, INT’L MONETARY FUND (May 2008), http://www.imf.org/external/np/exr/ib/2008/053008.htm.
4. Not entirely free, your honour, ECONOMIST, July 10, 2010, http://www.economist.com/node/
16693882. 5. See, e.g., Sabino Cassese, The Globalization of Law, 37 INT’L L. & POLITICS 973, 981–86
(2005), http://iilj.org/GAL/documents/THEGLOBALIZATIONOFLAW.pdf.
6. Sarah Kellogg, Toward an International Legal System, DC BAR, http://www.dcbar.org/
for_lawyers/resources/publications/washington_lawyer/september_2006/international.cfm (last visited
Aug. 29, 2012) (quoting Sandra Day O’Connor, Associate Justice, Supreme Court of the United States).
7. Dan Gilgoff, Law Schools Go International, U.S. NEWS & WORLD REP. (Apr. 12, 2004), available at http://www.utopiapolitics.com/forums/index.php?showtopic=22570&mode=
threaded&pid=304791.
2012] ETHICAL ISSUES OF NATIONAL SECURITY LAW 1059
precision weaponry) illustrates how developments in the commercial sphere
profoundly influence the way humans have fought.
It should not be surprising that the prominence the law—and lawyers—
has achieved in the realm of globalized commerce parallels a similar growth
in influence in national security matters, including the conduct of war.
Senior military leaders acknowledge the new environment. General James
Jones, the former commander of NATO forces, conceded that twenty-first
century warfare is now “very legalistic and very complex,” requiring “a
lawyer or a dozen.” 8 In part, this “legalistic” aspect of warfare results from
efforts of today’s adversaries to manipulate respect for the rule of law into
something they can exploit. Professor William Eckhardt explains:
Knowing that our society so respects the rule of law that it demands
compliance with it, our enemies carefully attack our military plans
as illegal and immoral and our execution of those plans as contrary
to the law of war. Our vulnerability here is what philosopher of war
Carl von Clausewitz would term our “center of gravity.” 9
The evolving role of law—and lawyers—in national security matters
post-9/11 has not been without controversy about the professional ethics of
the discipline’s practitioners. Cynics, for example, argue that war is
becoming “overlawyered.” 10
More specifically, former Office of Legal
Counsel (“OLC”) attorneys John Yoo and Jay Bybee were accused by the
Justice Department’s Office of Professional Responsibility (“OPR”) of
professional misconduct by “failing to provide ‘thorough, candid, and
objective’ analysis in memoranda regarding the interrogation of detained
terror suspects.” 11
A review by David Margolis, the Associate Deputy Attorney General,
rejected the OPR findings and concluded that no professional misconduct,
per se, had taken place. 12
He did so even though he found that there were
“some significant flaws” in the memos, 13
and that “Yoo and Bybee
8. Lyric Wallwork Winik, A Marine’s Toughest Mission, PARADE, Jan. 19, 2003, available at
http://www.network54.com/Forum/135069/message/1043158278/A+Marine%27s+Toughest+Mission. 9. William George Eckhardt, Lawyering for Uncle Sam When He Draws His Sword, 4 CHI. J.
INT’L L. 431, 434 (2003).
10. See, e.g., Michael Barone, The Overlawyered War, U.S. NEWS & WORLD REP. (Sep. 16, 2007), http://www.usnews.com/opinion/mbarone/articles/2007/09/16/the-criminalizing-of-warfare-has-
brought-the-overlawyered-war.
11. Memorandum from David Margolis, Associate Deputy Attorney Gen., U.S. Dep’t of Justice,
to the Attorney Gen., the Deputy Attorney Gen., U.S. Dep’t of Justice 68 (Jan. 5, 2010) [hereinafter
Memorandum from David Margolis], available at http://judiciary.house.gov/hearings/pdf/DAGMargolis
Memo100105.pdf (internal quotation marks omitted). 12. See id. at 64–65.
13. Id. at 67.
1060 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38
exercised poor judgment by overstating the certainty of their conclusions
and understating countervailing arguments.” 14
As critics have pointed out, Margolis’ conclusions are based on a
standard employed by OPR that essentially requires proving more than what
the American Bar Association (“ABA”) Model Rules might require. David
Luban maintains:
The OPR standard requires not just an ethics violation, but an ethics
violation that the lawyer committed intentionally or in reckless
disregard of the rules of conduct. In other words, OPR’s framework
requires proof of a guilty mental state over and above what the
ethics rules themselves require. 15
Consequently, the cases of Yoo and Bybee, notwithstanding the exoneration
of the two on ethics charges, do not provide much precedent useful to
attorneys charged with ethics violations in the future, especially if they are
judged on the more demanding standards of competence and candor
expressed in the ABA Model Rules. 16
Beyond allegations of professional malfeasance, at least one national
security law practitioner actually found himself criminally charged. Captain
Randy Stone, U.S. Marine Corps (“USMC”), was one of the first persons
criminally charged following the 2005 killing in Haditha, Iraq, of twenty-
four unarmed civilians by U.S. Marines. 17
Captain Stone was alleged to
have failed to properly report and investigate the deadly incident. 18
Although the court-martial convening authority (then Lieutenant General
James Mattis, USMC) later dismissed the charges, he did so not because he
concluded no professional errors occurred, but rather because he did not
believe that “any mistakes Captain Stone made with respect to the incident
[rose] to the level of criminal behavior.” 19
Interestingly, Lieutenant General
14. Id. at 68.
15. David Luban, David Margolis Is Wrong, SLATE (Feb. 22, 2010, 11:49 AM),
http://www.slate.com/articles/news_and_politics/jurisprudence/2010/02/david_margolis_is_wrong.html. 16. Compare Memorandum from David Margolis, supra note 11, with MODEL RULES OF PROF’L
CONDUCT (2012) [hereinafter MODEL RULES], available at http://www.americanbar.org/groups/
professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_profess
ional_conduct_table_of_contents.html. 17. John McChesney, Haditha Proceedings Begin with Marine Lawyer, NPR (May 7, 2007),
http://www.npr.org/templates/story/story.php?storyId=10069336.
18. See id.
19. Press Release, U.S. Marine Corps, Camp Pendleton Media Center, Charges Dismissed
Against Marine in Haditha, Iraq Investigation, #07-016 (Aug, 9, 2007) [hereinafter Press Release], available at http://www.marines.mil/unit/marforcent/Haditha%20Documents/2007/Haditha%20Rel%20
016%20070809.htm.
2012] ETHICAL ISSUES OF NATIONAL SECURITY LAW 1061
Mattis also observed that the lawyer and his fellow Marines “served in the
most ethically challenging combat environment in the world.” 20
While the battlefields of Iraq unquestionably present an “ethically
challenging” environment, they are not the only places where the practice of
national security law presents ethical difficulties. This Article does not
purport to catalogue—let alone definitively resolve—every issue of
professional responsibility a national security practitioner might face. It
does, however, aim to illustrate at least some of the problems that are
uniquely complicated by a variety of imperatives intrinsic to the national
security law discipline.
Generally, the ethical behavior of lawyers, to include national security
law practitioners, is governed by their particular licensing jurisdiction’s
code of professional responsibility. In most instances, these local codes
draw upon the ABA Model Rules of Professional Conduct, which represent
the legal profession’s archetypal standards. 21
The Model Rules do not,
however, make many special accommodations for a national security
practice, 22
and that has caused some to question their utility in resolving the
ethical issues that arise in a national security law practice. 23
Nevertheless,
they provide an appropriate starting point for discussion of this very
important topic. Accordingly, this Article will survey the Model Rules and
select a few of them to try to illuminate (through the examination of actual
cases where possible) how they might apply in the national security law
realm. This effort starts with an examination of the Preamble of the Model
Rules.
II. THE MODEL RULES
a. Furthering the Public’s Understanding, Confidence, and
Participation in the Rule of Law
As a public citizen, a lawyer should seek improvement of the law,
access to the legal system, the administration of justice and the
20. Id. 21. See MODEL RULES, supra note 16.
22. Many government lawyers are required to abide by the McDade Amendment, Ethical Stand-
ards for Federal Prosecutors Act and the Citizen’s Protection Act (also known as the “McDade Amend- ment”) as implemented by the Ethical Standards for Attorneys for the Government, 28 C.F.R. § 77.1
(2012). These standards generally make a government attorney “subject to State laws and rules, and
local Federal court rules, governing attorneys in each State where such attorney engages in that attor-
ney’s duties, to the same extent and in the same manner as other attorneys in that State.” 28 U.S.C. §
530B (2011).
23. See, e.g., Keith A. Petty, Professional Responsibility Compliance and National Security Attorneys: Adopting the Normative Framework of Ethical Legal Process, 4 UTAH L. REV. 1563, 1564,
1566 (2011), http://epubs.utah.edu/index.php/ulr/article/view/680/521.
1062 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38
quality of service rendered by the legal profession . . . In addition, a
lawyer should further the public’s understanding of and confidence
in the rule of law and the justice system because legal institutions in
a constitutional democracy depend on popular participation and
support to maintain their authority. 24
This excerpt from the Preamble to the Model Rules expresses what one
might have thought, prior to 9/11, was a rather uncontroversial
responsibility of a legal professionalto promote the rule of law whenever
and wherever one could. However, in Holder v. Humanitarian Law
Project, 25
the Supreme Court essentially endorsed the government’s ability
to prohibit the advancing of “the public’s understanding of and confidence
in the rule of law and the justice system[,]” at least insofar as specific
groups are concerned. 26
Humanitarian Law Project involved a statute that criminalizes “material
support” (to include “training,” “services,” and “expert advice or
assistance”) to certain designated terrorist organizations. 27
The Secretary of
State had designated the Partiya Karkeran Kurdistan (“PKK”) and the
Liberation Tigers of Tamil Eelam (“LTTE”) as terrorist organizations. 28
What the nongovernmental organizations who were parties to the case
sought to provide appears to be exactly what the Model Rules seem to
encourage, that is, “train[ing] members of [the] PKK on how to use
humanitarian and international law to peacefully resolve disputes”;
“teach[ing] PKK members how to petition various representative bodies
such as the United Nations for relief”; “train[ing] members of [the] LTTE to
present claims for tsunami-related aid to mediators and international
bodies”; and “offer[ing] their legal expertise in negotiating peace
agreements between the LTTE and the Sri Lankan government.” 29
The Court concluded that such activities could be prohibited consistent
with the First Amendment. 30
In rationalizing its view, it conjured up a
variety of questionable theories. For example, it claimed that training to use
law to peacefully resolve disputes might enable a “broader strategy to
promote terrorism.” 31
The Court hypothesized that the “PKK could, for
example, pursue peaceful negotiation as a means of buying time to recover
24. MODEL RULES, supra note 16, Preamble and Scope, ¶ 6.
25. 130 S. Ct. 2705 (2010).
26. Compare id., with MODEL RULES, supra note 16, Preamble and Scope.
27. 18 U.S.C. § 2339B (2011).
28. Holder v. Humanitarian Law Project, 130 S. Ct. at 2713.
29. Id. at 2716. 30. Id. at 2731.
31. Id. at 2711.
2012] ETHICAL ISSUES OF NATIONAL SECURITY LAW 1063
from short-term setbacks, lulling opponents into complacency, and
ultimately preparing for renewed attacks.” 32
Many scholars find the decision perplexing and wrong. For example,
one First Amendment expert, David Goldberger, calls Humanitarian Law
Project “an incredibly broad ban on assistance to groups listed as terrorist
groups, even where the assistance might have the effect of facilitating the
abandonment of terrorism.” 33
Even more inexplicable is the Court’s
reasoning in justification of the ban introducing extremist organizations to
the rule of law. According to the Court, a “foreign terrorist organization
introduced to the structures of the international legal system might use the
information to threaten, manipulate, and disrupt. This possibility is real, not
remote.” 34
It is surprising that the Court would have so little confidence in the
ability of various legal institutions to appropriately handle those that seek to
“threaten, manipulate, and disrupt.” Robust legal systems, such as that of
the U.S., can deal with exactly that kind of person, and most develop rules
and procedures to do so effectively. What is the alternative? History shows
that extremist organizations can be pacified by integration into political and
legal systems—the evolution of the Irish Republican Army being one
example. 35
Absent the incorporation of warring groups into the political
process in accordance with the rule of law, it is difficult to conceive how
some conflicts can be resolved. Training about the legal system and advice
as to how to access it, along with efforts to further the understanding of and
confidence in the rule of law and the justice system, as suggested by the
Model Rules Preamble, would seem to be indispensable to such efforts; yet
Humanitarian Law Project largely precludes that, at least for certain groups.
Although Humanitarian Law Project might be read as an unfortunate
disparagement of the efficacy of the law to be an engine for dispute
resolution, it is important for national security practitioners to keep in mind
that the Court was not advocating a position, but rather merely ruling on the
constitutionality of a statute. Still, the national security law practitioner
should continue to try to advance—where permitted by the law—the use of
legal means and institutions to resolve conflicts. However bitter and caustic
32. Id. at 2729. 33. Jonathan Peters, Ten questions on free speech with David Goldberger, the First Amendment
lawyer who won Skokie, McIntyre and other SCOTUS cases, HARV. L. & POLICY REV. (July 20, 2012),
http://hlpronline.com/2012/07/ten-questions-on-free-speech-with-david-goldberger-the-first-amendment-
lawyer-who-won-skokie-mcintyre-and-other-scotus-cases/.
34. Humanitarian Law Project, 130 S. Ct. at 2729.
35. See generally Kathryn Gregory, Provisional Irish Republican Army (IRA), COUNCIL ON
FOREIGN REL. (Mar. 16, 2010), http://www.cfr.org/terrorist-organizations/provisional-irish-republican-
army-ira-aka-pira-provos-glaigh-na-hireann-uk-separatists/p9240.
1064 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38
legal battles may be, they are always preferable to the ones marked by
actual bullets and blood.
b. The Role of the Courts
The legal profession is largely self-governing . . . [U]ltimate
authority over the legal profession is vested largely in the courts. 36
The idea that the “legal profession is largely self-governing” and that
the “ultimate authority over the legal profession is vested largely in the
courts” 37
can be troubling in the national security setting, as the courts very
often take a hands-off approach to national security issues. For example,
with respect to the military dimension of national security affairs, the
Supreme Court declared in Gilligan v. Morgan 38
that:
[I]t is difficult to conceive of an area of governmental activity in
which the courts have less competence. The complex subtle, and
professional decisions as to the composition, training, equipping,
and control of a military force are essentially professional military
judgments, subject always to civilian control of the Legislative and
Executive Branches. 39
Courts very often seize upon an array of theories to avoid involvement
in cases that raise national security matters. 40
In many instances they halt
the legal process by relying upon the “political question” doctrine, 41
the
“state secrets” theory, 42
or standing. 43
On other occasions, deference to the
executive branch effectively ends litigation before the merits have been
36. MODEL RULES, supra note 16, Preamble and Scope, ¶ 10. The full paragraph reads:
The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of
the close relationship between the profession and the processes of government and law
enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts.
Id.
37. Id.
38. 413 U.S. 1 (1973). 39. Id. at 10.
40. See STEPHEN DYCUS ET AL., NATIONAL SECURITY LAW 123 (5th ed. 2011).
41. See, e.g., El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 851 (2010).
42. U.S. v. Reynolds, 345 U.S. 1, 7–8 (1953); see generally TODD GARVEY & EDWARD C. LIU,
CONG. RESEARCH SERV., R41741, THE STATE SECRETS PRIVILEGE: PREVENTING DISCLOSURE OF
SENSITIVE NATIONAL SECURITY INFORMATION DURING CIVIL LITIGATION 4 (2011), available at http://www.fas.org/sgp/crs/secrecy/R41741.pdf.
43. See, e.g., Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 5 (D.D.C. 2010).
2012] ETHICAL ISSUES OF NATIONAL SECURITY LAW 1065
examined. 44
Indeed, Professor Stephen Vladeck contends that as of May
2012, there have not been any successful lawsuits “arising out of post–
September 11 U.S. counterterrorism policies alleging violations of
plaintiffs’ individual rights.” 45
Professor Vladeck argues that a “national
security canon” has arisen that effectively leaves those harmed by
governmental action related to national security without legal recourse. 46
The judiciary’s use of these doctrines can have the effect of shielding
the activities of lawyers from the scrutiny the courts might otherwise give
their behavior. As a Harvard professor and former government attorney,
Professor Jack Goldsmith, has noted, “[o]ften when an Executive Branch
lawyer advises a client on a national security matter, their advice takes place
in secret without a dissenting opinion or appellate review. This is a
situation fraught with the possibilities of mistakes.” 47
Thus, while the
courts may well have “ultimate authority” over the professional conduct of
attorneys, absent the transparency into their activities that litigation provides
in other contexts, they simply cannot exercise that authority in a meaningful
way.
A good example of the mischief that can result is found in the case of
U.S. v. Reynolds, 48
which has become accepted as the seminal case for the
state secrets doctrine. 49
This case arose out of a 1948 Waycross, Georgia,
crash of a B-29 bomber carrying out tests on then advancedand
classifiedelectronic equipment. 50
During discovery in a suit for damages
by the relatives of the civilian victims (Radio Corporation of America
employees who were aboard the ill-fated plane), the plaintiffs sought a copy
of the Air Force’s accident investigation. 51
The Government, employing
rather ambiguous affidavits, denied the request, implying that classified
information would be compromised by the report’s disclosure, and formally
asserted that the report was privileged. 52
Even the trial judge was denied
access to it. 53
44. Robert M. Chesney, National Security Fact Deference, 95 VA. L. REV. 1361, 1361–62 (2009) http://www.virginialawreview.org/content/pdfs/95/1361.pdf.
45. Stephen I. Vladeck, The New National Security Canon, 61 AM. U. L. REV. 1295, 1296
(2012), http://aulawreview.org/pdfs/61/61-5/Vladeck.website.pdf. 46. Id.
47. Jack Goldsmith, Reflections on Government Lawyering, 205 MIL. L. REV. 192, 196 (2010).
48. 345 U.S. 1.
49. See id.
50. Id. at 2–3.
51. Id. at 3. 52. Id. at 3–4.
53. Reynolds, 345 U.S. at 5–6.
1066 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38
Scholar Louis Fisher asserts that there “was a reason for the government
to withhold the accident report from [the trial judge].” 54
According to
Fisher, it was not secrets that would be compromised; rather, the “report
revealed clear negligence on the part of the Air Force, which had not
installed heat shields and had failed to brief the civilian engineers before the
flight on the use of parachutes and emergency aircraft evacuation.” 55
Not
knowing what the report actually said, the Supreme Court upheld the
government’s position, finding that “when the formal claim of privilege was
filed by the Secretary of the Air Force, under circumstances indicating a
reasonable possibility that military secrets were involved, there was
certainly a sufficient showing of privilege to cut off further demand for the
documents.” 56
The story does not, however, end there. In the year 2000, a daughter of
one of the civilians killed in the crash discovered the declassified accident
report for sale on the Internet. 57
Subsequent examination of it confirmed
that no classified information or equipment had been involved in the crash,
and the plaintiffs sought to reopen the case based on the apparent fraud on
the court. 58
However, “[d]espite this showing of apparent government
misconduct” the Supreme Court eventually denied a coram nobis petition
for further review. 59
In subsequent litigation, the plaintiffs were “denied
relief because they were unable to show that government officials in 1953
had committed intentional fraud on the court.” 60
Nevertheless, the Reynolds opinion has been severely criticized. Fisher
argues:
The Supreme Court in Reynolds accepted at face value the
government’s assertion that the accident report and survivors’
statements contained state secrets. That assertion was false. By
accepting the government’s claim and by not examining the
54. Louis Fischer, The State Secrets Privilege: Relying on Reynolds, 122 POL. SCI. Q. 385, 399 (2007), http://www.constitutionproject.org/pdf/452.pdf.
55. Id.
56. Reynolds, 345 U.S. at 10–11. 57. See Michael Freedman, Daughters of the Cold War, LEGAL AFFAIRS (Jan./Feb. 2004),
http://www.legalaffairs.org/issues/January-February-2004/story_freedman_janfeb04.msp. Cf. BARRY
SIEGEL, CLAIM OF PRIVILEGE (2008) (chronicling the decades-long search for the truth that took place
after the plane crash).
58. See id.
59. DYCUS, supra note 40, at 158 (citing In re Herring, 539 U.S. 940 (2003)). 60. Id. (citing Herring v. United States, 424 F.3d 384 (3d Cir. 2005), cert. denied, 547 U.S. 1123
(2006)).
2012] ETHICAL ISSUES OF NATIONAL SECURITY LAW 1067
documents, the Court appeared to function as an arm of the
executive branch and failed to exercise independent judgment. 61
As it happens, the state secrets privilege has recently come under
scrutiny, as some in Congress believe the privilege is being abused. 62
Accordingly, legislation is being introduced designed “to counter federal
judges who routinely accept the government’s privilege assertion on face
value without any inquiry, sometimes without viewing any classified
material to support the government’s position.” 63
It is impossible at this point in time to really understand the thinking of
the government lawyers involved in the Reynolds case, and to
rationalizeconsistent with the Model Ruleshow they justified their
conduct, which suggests, at a minimum, a lack of “candor.” 64
In any event, Reynolds underlines the importance, as the ABA Preamble
says, of the self-governing character of the legal profession. 65
Given the
nature of national security issues, we cannot expect the courts to always
exercise oversight and authority contemplated by the Model Rules, if for no
other reason than the opaque character of much national security law
litigation. In the end, for the national security law practitioner especially,
compliance with ethical standards necessitates individual lawyers’ “self-
governing.”
c. The Lawyer as a Zealous Advocate
As advocate, a lawyer zealously asserts the client’s position under
the rules of the adversary system. 66
61. Fisher, supra note 54, at 401. 62. David Kravets, Much-Abused ‘State Secrets Privilege’ Under Fire in Congress, WIRED (June
25, 2012), http://www.wired.com/threatlevel/2012/06/state-secrets-revamp/.
63. Id. 64. See MODEL RULES, supra note 16, R. 3.3.
65. See id., Preamble and Scope, ¶ 10. 66. Id. ¶ 2. The full paragraph reads as follows:
As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations
and explains their practical implications. As advocate, a lawyer zealously asserts the client’s
position under the rules of the adversary system. As negotiator, a lawyer seeks a result
advantageous to the client but consistent with requirements of honest dealings with others. As
an evaluator, a lawyer acts by examining a client’s legal affairs and reporting about them to
the client or to others.
Id.
1068 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38
The Preamble speaks to a cardinal—and indispensable—responsibility
of lawyers: zealous representation. 67
Importantly, the Model Rules
juxtapose the lawyer’s function as an advocate among other functions that
the lawyer may serve in the context of representation. Though sometime
misunderstood, this requirement for zealous advocacy does not mean that a
lawyer must, or even can, do anything, anytime, that the client desires. As
Justice Sandra Day O’Connor maintains, “[t]he hardest thing you must
accept as an ethical, moral lawyer is that it is not your job to win for your
client at all costs.” 68
The case of Lynne Stewart is an example of a national
security case where the attorney in question lost sight of Justice O’Connor’s
admonition, and suffered for it.
Ms. Stewart was a self-described “radical human rights attorney” 69
with
a “reputation for defending unpopular clients and causes.” 70
One of those
clients was Omar Abdel Rahman, the “blind Sheik” who was convicted of
various terrorism-related offenses including plotting to blow up the World
Trade Center. 71
As part of her representation, Ms. Stewart was required to
agree to “special administrative measures” (“SAMs”) in order to get access
to her imprisoned client. 72
Among other things, these SAMs prohibited her
from using her “meetings, correspondence or phone calls with Abdel
Rahman to pass messages between third parties (including, but not limited
to, the media) and Abdel Rahman.” 73
In 2005, Ms. Stewart was tried for several offenses arising out her
representation of Rahman, including violating the SAMs by smuggling
messages from Rahman to an Egyptian militant group, al-Gama’a, mostly
about a ceasefire that the group had declared with regard to its violent
efforts to overthrow the Egyptian government. 74
In her defense Stewart
insisted that she was merely acting “zealously” for her client. Convicted
and sentenced to twenty-eight months in prison, Stewart defiantly declared
that she “can do that [prison term] standing on [her] head.” 75
In addition,
when asked if she would do anything differently, she replied, “I don’t—I’d
like to think I would not do anything differently . . . . I made these decisions
67. See id. 68. Sandra Day O’Connor, On Being Ethical Lawyers, CLARK MEMORANDUM, Spring 2008, at 5,
http://www.jrcls.org/publications/clark_memo/sections/s08/cmS08_oconnor.pdf.
69. About, JUSTICE FOR LYNNE STEWART (May 30, 2010), http://lynnestewart.org/about-lynne/. 70. Benjamin Weiser, 10-Year Sentence for Lawyer in Terrorism Case Is Upheld, N. Y. TIMES,
June 28, 2012, http://www.nytimes.com/2012/06/29/nyregion/lynne-stewarts-10-year-prison-sentence-
is-upheld.html.
71. U.S. v. Rahman, 189 F.3d 88, 103-04 (2d Cir. 1999), cert. denied, 528 U.S. 1094 (2000).
72. U.S. v. Stewart, 590 F.3d 93, 100 (2d Cir. 2009).
73. Id. at 100. 74. U.S. v. Stewart, 686 F.3d 156, 162 (2d Cir. 2012).
75. Id. at 165.
2012] ETHICAL ISSUES OF NATIONAL SECURITY LAW 1069
based on my understanding of what the client needed, what a lawyer was
expected to do . . . . I would do it again. I might handle it a little differently,
but I would do it again.” 76
On appeal, Stewart reiterated her claim that she had been simply acting
“zealously” to represent her client. However, the court rejected this
contention, finding that
the jury had a reasonable basis on which to disbelieve this, and to
“disbelieve that zealous representation included filing false
affirmations, hiding from prison guards the delivery of messages to
Abdel Rahman, and the dissemination of responses by him that
were obtained through dishonesty.” Moreover, even if Stewart
acted with an intent to represent her client zealously, a rational jury
could nonetheless have concluded that Stewart simultaneously acted
with an intent to defraud the government. A genuinely held intent
to represent a client “zealously” is not necessarily inconsistent with
criminal intent. 77
In fact, the appeals court would not affirm the sentence, returning it to
the trial court for further consideration because the appellate judges could
not “conclude that the mitigating factors” were sufficient to justify the
original twenty-eight-month sentence “in light of the seriousness of her
criminal conduct, her responsibilities as a member of the bar, and her role as
counsel for Abdel Rahman.” 78
In a stunning turn of events, the trial court re-sentenced Stewart to ten
years, the trial judge finding that the original sentence was not adequate
because, among other things, she “abused her position as a lawyer.” 79
That
sentence was affirmed on appeal, as the judges ruled that not only was it
lawful to consider Stewart’s post-conviction statements of bravado in the re-
sentencing, but also that she
persisted in exhibiting what seems to be a stark inability to
understand the seriousness of her crimes, the breadth and depth of
the danger in which they placed the lives and safety of unknown
76. Id.
77. Stewart, 590 F .3d at 110 (quoting U.S. v. Sattar, 395 F. Supp.2d 79, 90 (S.D.N.Y. 2005)).
78. Id. at 99. 79. Scott Shifrel & James Fanelli, Lynn Stewart, 70-year-old radical lawyer, sentenced to 10 years in prison for aiding bomb plotter, N.Y. DAILY NEWS (July 15, 2010),
http://articles.nydailynews.com/2010-07-15/local/27070085_1_koeltl-defense-lawyers-terrorism-case.
1070 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38
innocents, and the extent to which they constituted an abuse of her
trust and privilege as a member of the bar. 80
In a pre-sentencing letter to the trial judge, Stewart gave an inkling of
what may have been her key shortcomings. 81
She spoke of seeing her job as
a lawyer as that of “caring for the whole client,” to include “giving them
money for food or their families,” and “visiting them on holidays”—
activities beyond the usual professional responsibilities, and problematic
ones in an era of sophisticated and exploitive international terrorists. 82
Stewart indicated that she believed that “her stature in the legal
community[,]” along with what she implies was general acceptance by the
government of her way of practice in prior cases, would somehow exempt
her from being viewed as having broken the law in the Rahman case. 83
Perhaps most importantly, she admitted that “representing this convicted
terrorist was still uncharted territory in the years 1997–2001” and that “what
might have been legitimately tolerated in 2000–2001, was after 9/11,
interpreted differently and considered criminal.” 84
Clearly, the idea that terrorism and other national security cases are
“different” and viewed with the utmost seriousness is a lesson that all
lawyers would do well to internalize from the Lynne Stewart case. It is
another manifestation of the precept that government has no more
compelling interest “than the security of the Nation,” 85
and that fact may
well operate to diminish tolerance for behavior that might otherwise be
excused.
d. Competence
A lawyer shall provide competent representation to a client.
Competent representation requires the legal knowledge, skill,
thoroughness and preparation reasonably necessary for the
representation. 86
Competence for the national security law practitioner can be quite
challenging. Almost by definition, national security matters are not the stuff
80. Stewart, 686 F.3d at 181 (emphasis added). 81. Letter from Lynne F. Stewart to the Honorable John G. Koeltl, U.S. Dist. Court Judge,
Southern Dist. N.Y. (Jan. 26, 2006), available at http://www.lynnestewart.org/Stewart%20Letter
%20(Ex%201)%20scanned.pdf.
82. Id.
83. Id.
84. Id. 85. See Haig v. Agee, 453 U.S. at 307.
86. MODEL RULES, supra note 16, R. 1.1.
2012] ETHICAL ISSUES OF NATIONAL SECURITY LAW 1071
of most civilian experience. A contracts lawyer may have personal
experience in buying a home or car that may familiarize him or her with
issues arising in a similar transaction by a client. Contrast that with the
national security law practitioner who may find himself or herself
deliberating over a decision to kill another human being, or hundreds.
Furthermore, some tasks may require considerable technical knowledge in
order to utilize complex equipment in command centers, or to understand
the weapons, warfare, and warriors of the national security discipline.
Accordingly, specialized training is indispensable in order to function
effectively, especially where high-technology weaponry is involved. 87
The consequences of a lack of training can be serious. The case of
Captain Randy Stone, the Marine lawyer accused of failing to properly
report and investigate the Haditha incident, is instructive. 88
Although he
was “responsible for handling investigations and training Marines in the
military’s laws of war,” Stone said “he received almost zero training for his
job before joining the battalion in Iraq in September 2005.” 89
National security law clients may have very high expectations about
what they want a lawyer to understand about this “business.” Lieutenant
General Michael C. Short, USAF (Ret.), who commanded air operations
against Serbia 90
in the 1990s, advised:
I would give an up-and-coming young operational lawyer wearing
the uniform in defense of this country [the following advice:]
Understand what your commander is up against. Understand and
participate in the development of his rules of engagement.
Understand what special instructions he is providing as
supplemental to his rules of engagement, to his troops in field, or
his men and women at sea, or his men and women in the air. 91
87. See, e.g., Charles J. Dunlap, Come the Revolution: A Legal Perspective on Air Operations in Iraq Since 2003, in ISRAEL YEARBOOK ON HUMAN RIGHTS 141 (Yoram Dinstein ed., 2010), and reprint-
ed in 86 THE WAR IN IRAQ: A LEGAL ANALYSIS 139–54 (Raul A “Pete” Pedroza & Naval War College Press eds., 2010), available at http://scholarship.law.duke.edu/faculty_scholarship/ 2182/.
88. See McChesney, supra note 17; Press Release, supra note 19.
89. Rick Rogers, Marine tells why no Haditha-case probe, SAN DIEGO UNION-TRIBUNE, May 16, 2007, http://www.utsandiego.com/uniontrib/20070516/news_1mi16haditha.html.
90. See generally U.S. Dep’t of Defense, Report to Congress: Kosovo/Operation Allied Force
After-Action Report 20 (Jan. 31. 2000), available at http://www.au.af.mil/au/awc/awcgate/kosovoaa/kaa
r02072000.pdf.
91. Lieutenant General Michael Short, USAF (Ret.), Operation Allied Force from the Perspec-
tive of the NATO Air Commander, in 78 U.S. NAVAL WAR COLLEGE, LEGAL AND ETHICAL LESSONS OF
NATO’S KOSOVO CAMPAIGN 19 (Andru E. Wall ed., 2002) [hereinafter Operation Allied Force],
http://www.au.af.mil/AU/AWC/AWCGATE/navy/kosovo_legal.pdf. For another discussion of the role
1072 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38
A national security law practitioner must, in many instances, have a
deep enough level of understanding of the means and methods of national
security activities to be able to offer lawful alternatives when possible.
Offering timely alternatives is an indispensable aspect of this kind of
practice, and is a quality that can earn the trust of the client.
When national security law practitioners demonstrate authentic
competence, “client” commanders have greater faith in them, and will more
readily incorporate them into the decision-making process. When that
occurs, real dividends result. For example, when a Human Rights Watch
analyst told the New York Times, in 2008, that the Air Force had “‘all but
eliminated civilian casualties in Afghanistan’” 92
in strikes that are a product
of the deliberate planning process, the paper also pointed out that “Air Force
lawyers vet all the airstrikes approved by the operational air
commanders.” 93
Again, few things are more important for a “competent” national
security law practitioner than a comprehensive and in-depth knowledge of
not just the law, but also the “client” and his or her very unique “business.”
e. Special Conflicts of Interest for Former and Current Government
Officers and Employees
[A] lawyer who has formerly served as a public officer or employee
of the government . . . shall not otherwise represent a client in
connection with a matter in which the lawyer participated
personally and substantially as a public officer or employee, unless
the appropriate government agency gives its informed consent,
confirmed in writing, to the representation. 94
of lawyers in that conflict from a commander’s perspective, see generally WESLEY K. CLARK, WAGING
MODERN WAR: BOSNIA, KOSOVO, AND THE FUTURE OF COMBAT 175, 179, 461 (2001).
92. Thom Shanker, Civilian Risks Curbing Airstrikes in Afghan War, N.Y. TIMES, July 23, 2008, http://www.nytimes.com/2008/07/23/world/asia/23military.html (quoting Marc Garlasco, Senior Mili-
tary Analyst, Human Rights Watch). 93. Id.
94. MODEL RULES, supra note 16, R. 1.11. The full paragraph (and the following paragraph)
states:
(a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a
public officer or employee of the government:
(1) is subject to Rule 1.9(c); and
(2) shall not otherwise represent a client in connection with a matter in which the lawyer
participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the
representation.
2012] ETHICAL ISSUES OF NATIONAL SECURITY LAW 1073
This is an area of the Model Rules that most involves the civilian sector,
and particularly those who have previously served in government. It can
ensnare even very highly respected and knowledgeable lawyers. An
illustrative example with a national security law dimension is the case of
Abraham D. Sofaer, a still much-admired and valued lawyer. 95
Sofaer was the Legal Advisor to the State Department from 1985 to
1990. 96
In 1988, a bomb exploded on Pan Am flight 103 over Lockerbie,
Scotland, killing 270 people, including 189 Americans. 97
A Libyan
intelligence agent was later convicted for his part in what was determined to
be one of the worst acts of state-sponsored terrorism in recent years. 98
In
2003, Libya, as a result of pressure from international sanctions, accepted
“responsibility for the actions of its officials and [agreed to] payment of
appropriate compensation to the victims’ families.” 99
The compensation
was reported to amount to $1.5 billion and its payment “clear[ed] the way
for the full normalization of relations between Washington and Tripoli.” 100
After he left government and entered private practice, Sofaer undertook
the representation of “the government of Libya in connection with criminal
(b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a
firm with which that lawyer is associated may knowingly undertake or continue
representation in such a matter unless: (1) the disqualified lawyer is timely screened from any participation in the matter and is
apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.
(c) Except as law may otherwise expressly permit, a lawyer having information that the
lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests
are adverse to that person in a matter in which the information could be used to the material
disadvantage of that person. As used in this Rule, the term “confidential government information” means information that has been obtained under governmental authority and
which, at the time this Rule is applied, the government is prohibited by law from disclosing to
the public or has a legal privilege not to disclose and which is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation
in the matter only if the disqualified lawyer is timely screened from any participation in the
matter and is apportioned no part of the fee therefrom.
Id. 95. Mr. Sofaer is currently the George P. Shultz Senior Fellow in Foreign Policy and National
Security Affairs at Stanford University’s Hoover Institution. Abraham D. Sofaer, HOOVER INSTITUTION,
http://www.hoover.org/fellows/10685 (last visited Aug. 28, 2012). 96. See id.
97. Jeffrey Fleishman & Glen Johnson, Lockerbie bomber dies in Libya, LOS ANGELES TIMES,
May 21, 2012, http://articles.latimes.com/2012/may/21/world/la-fg-libya-lockerbie-bomber-20120521.
98. Id.
99. Background Note: Libya, U.S. DEP’T ST. (Mar. 9, 2012), http://www.state.gov/r/pa/ei/bgn/ 5425.htm. 100. Kirit Radia, Pan Am 103 Families Finally Compensated, ABC NEWS (Oct. 31, 2008),
http://abcnews.go.com/Blotter/story?id=6158491&page=1.
1074 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38
and civil disputes and litigation arising from the [Pan Am] bombing.” 101
As
a result, the Board on Professional Responsibility ordered Sofaer to receive
an informal admonition for having violated Rule 1.11(a) of the District of
Columbia Rules of Professional Conduct by accepting employment
“substantially related” to a “matter” in which he participated personally and
substantially as the Legal Advisor for the State Department. 102
In his defense, Sofaer vigorously contested the precise meaning of the
various terms in the rule, and offered several other explanations justifying
his actions. 103
However, the District of Colombia Court of Appeals adopted
the Board report. 104
In that report it was emphasized that it found a
violation of the rules not because Sofaer “undertook to represent an
unpopular client” or because of “the appearance of impropriety that caused
public condemnation of Respondent’s private representation of Libya”; 105
rather, the Board
[D]id not believe that [the rule] allows a government lawyer to be
briefed in the course of his official duties about a particular,
sensitive investigation into a discrete event, so that he can provide
legal advice, thereby learning important confidential information,
provide substantial and personal legal assistance concerning the
government’s efforts, then leave the government and represent a
suspect in the same investigation. 106
The court also found Sofaer’s activities “personal and substantial” and
noted that they did not become “insubstantial” simply because “the legal
judgment was easily arrived at or because the government subsequently
concluded that Pan Am’s theory of government complicity was
unsupported.” 107
Finally, the court concluded that, while it may be possible
for a former government lawyer to “limit the objectives of a representation
with client consent” so as to avoid conflict (and emphasized that it did “not
question the sincerity of respondent’s belief that the representation could be
insulated, factually and ethically, from the investigation and diplomatic
efforts of which he had been part”), it nevertheless found the efforts to do so
in this instance were inadequate. 108
101. In re Sofaer, 728 A.2d 625, 626 (D.C. 1999). 102. Id. at 630.
103. See id. at 627–28.
104. See id. at 626.
105. Id. at 651–52.
106. Sofaer, 728 A.2d at 651–52.
107. Id. at 627. 108. Id. at 628. See also Opinion 343: Application of the “Substantial Relationship” Test When
Attorneys Participate in Only Discrete Aspects of a New Matter, DC BAR,
2012] ETHICAL ISSUES OF NATIONAL SECURITY LAW 1075
An important lesson of the Sofaer case can be found in the court’s
observation that Sofaer did not (as any lawyer could have) “solicit the views
of his or her former agency concerning the proposed private legal
undertaking” or “consult with ethics advisers in his or her law firm . . . or
with the Legal Ethics Committee of the Bar.” 109
f. Diligence
A lawyer shall act with reasonable diligence and promptness in
representing a client. 110
Do the time-sensitive exigencies of national security law “matter” in
ethical decision making? Perhaps the real issue for the national security law
practitioner is to determine what is “reasonable” diligence under the
circumstances of a national security crisis. Unfortunately, no database or
treatise defines “reasonable” in the myriad of situations that national
security law practitioners face. In fact, many issues may be ones of first
impression, so there may well be a lack of historical precedent to rely upon.
Time pressure can be very real. In a statement submitted in connection
with David Margolis’ examination of the OPR conclusion that the two OLC
attorneys, John Yoo and Jay Bybee, violated ethical rules in the opinions
about enhanced interrogation techniques that many consider torture,
Professor Jack Goldsmith contends:
OPR is not looking at the OLC opinions with the same time
constraints as the lawyers who wrote the opinions; instead OPR has
taken nearly five years and still has not rendered a judgment. The
OLC layers did not have this luxury. Perhaps more important, OPR
is looking at the OLC opinions not in the context of the threat and
danger in which they were written, but rather in what former
Deputy Attorney General James Comey once described as “the
perfect, and brutally unfair, vision of hindsight.” 111
http://www.dcbar.org/for_lawyers/ethics/legal_ethics/opinions/opinion343.cfm (last visited Aug. 29, 2012).
109. Sofaer, 728 A.2d at 629. For a good discussion of the rules relating to potential conflicts for
lawyers leaving government, see Stacy M. Ludwig, The Revolving Door: Professional Responsibility
Considerations for Attorneys Entering or Leaving the Department of Justice, 57 U.S. ATTORNEYS’
BULLETIN, Sept. 2009, at 4, available at http://www.justice.gov/usaoeousa/foia_reading_room/usab
5704.pdf. 110. MODEL RULES, supra note 16, R. 1.3.
111. Memorandum from David Margolis, supra note 11.
1076 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38
In its guidance on ethical decision making, the Department of Defense
Joint Ethics Regulation advises: “The stress from the problem urges speedy
solutions. However, hasty decisions usually create problems of their own.
Take the time to gather all necessary information. Ask questions, demand
proof when appropriate, check your assumptions.” 112
Taking “the time to gather all necessary information” may be fine as
hortatory and aspirational statement, but is often impractical given the
velocity of many if not most national security issues. Hard decisions often
must be made on less than ideal information. Judge James Baker, a former
National Security Council member, observes that today’s national security
attorneys may not have much time for deliberation. 113
“For a variety of
reasons,” he says, “relating to the nature and multiplicity of transnational
and state threats, combined with the devastating potential of WMD,
questions of whether to resort to force and the methods and means of force
will pop-up and require immediate decision.” 114
Of course, when time to study an issue is available, it can make a real
difference. In a Human Rights Watch study about operations in
Afghanistan, it was found that civilian casualties “rarely occur during
planned airstrikes on suspected Taliban targets” but rather “almost always
occurred during the fluid, rapid-response strikes, often carried out in
support of ground troops.” 115
The “time crunch” of many national security issues highlights the
importance of advance preparation. The ability to make quick decisions
much depends not just upon an in-depth understanding of the law, but also
upon thorough familiarity with the context in which it must be applied. As
explained with relation to the ethical rule about competence, the ability to
be diligent in a national security law practice requires the attorneys involved
to make a study of the means and methods of national security operations.
As discussed elsewhere in this Article, diligence in the national security
law context may impose a responsibility to conduct a careful after-action
examination to ensure that decisions made in—literally—the heat of battle
were the right ones.
112. U.S. Dep’t of Defense Regulation 5500.7-R, § 12-501d, available at http://www.dtic.mil/whs
/directives/corres/pdf/550007r.pdf (emphasis added).
113. James E. Baker, LBJ’s Ghost: A Contextual Approach to Targeting Decisions and the Com-
mander in Chief, 4 CHI. J. INT’L L. 407, 424 (2003).
114. Id.
115. Human Rights Watch, “Troops in Contact”: Airstrikes and Civilian Deaths in Afghanistan 4 (Sept. 2008) (emphasis added), available at http://www.hrw.org/sites/default/files/reports/afghanistan09
08web_0.pdf.
2012] ETHICAL ISSUES OF NATIONAL SECURITY LAW 1077
g. Confidentiality
A lawyer shall not reveal information relating to the representation
of a client unless the client gives informed consent, the disclosure is
impliedly authorized in order to carry out the representation . . . A
lawyer may reveal information relating to the representation of a
client to the extent the lawyer reasonably believes necessary: . . . to
prevent reasonably certain death or substantial bodily harm . . .
[or] (2) to prevent the client from committing a crime or fraud that
is reasonably certain to result in substantial injury to the financial
interests or property of another . . . . 116
The case of former Navy Lieutenant Matthew Diaz is instructive with
respect to the complications of confidentiality in the national security
context. Diaz was a Navy Judge Advocate assigned to Guantánamo, Cuba,
not as part of the prosecution or defense teams involved in military
commissions’ cases, but rather as part of the installation support legal
office. 117
In that capacity he served as the point of contact at Guantánamo
for requests from Barbara Olshansky, an attorney working for the Center for
Constitutional Rights (“CCR”) in New York City, who was seeking names
and information regarding detainees. 118
116. MODEL RULES, supra note 16, R. 1.6. The full rule reads as follows:
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the
representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in
furtherance of which the client has used or is using the lawyer’s services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission
of a crime or fraud in furtherance of which the client has used the lawyer’s services; (4) to secure legal advice about the lawyer’s compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the
lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations
in any proceeding concerning the lawyer’s representation of the client; or
(6) to comply with other law or a court order.
Id.
117. U.S. v. Diaz, 69 M.J. 127, 129 (C.A.A.F. 2010), http://www.armfor.uscourts.gov/newcaaf/ opinions/2009SepTerm/090535.pdf.
118. See id.
1078 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38
After a decision was made to not provide the information to Olshansky,
Diaz concluded that the “government was ‘stonewalling’ over the release of
the names.” 119
Consequently, Diaz printed off a listing of 550 detainees,
and sent it anonymously in a Valentine’s card to Olshansky. 120
Suspecting
the list was classified, Olshansky contacted an attorney and eventually
turned the list over to government authorities who launched an
investigation, which nabbed Diaz. 121
According to his defense counsel, Diaz believed it was his “obligation
as a lawyer and an American to abide by the Constitution when he felt the
government did not.” 122
However, the military judge in the case concluded
“that none of the evidence proffered by Appellant supported his argument
that he was required to release classified information based on his duties as
a commissioned officer, his ethical obligations as a judge advocate, or his
ethical obligations as a licensed attorney.” 123
Although his attorney
admitted that Diaz was “stupid, imprudent and sneaky, if you want, about
the way he sent it off,” he nevertheless insisted Diaz “didn’t mean to harm
his country.” 124
Still, Diaz was convicted and sentenced to six months
confinement and dismissal from the Navy. 125
The Court of Appeals for the Armed Forces affirmed the conviction and
sentence. 126
A footnote in the court’s opinion is telling. In it, the court
described the process available to Navy lawyers who believe they are
confronting an ethical conundrum. Referring to Navy instruction on
professional responsibility, the court points out that it “recommends four
specific steps a covered attorney might take, including ‘referring the matter
to, or seeking guidance from, higher authority in the chain of command.’” 127
Of course, Diaz had made no attempt to resolve his concerns in this way. 128
The lesson here may be that as important as it is for national security
practitioners to be self-governing, it does not mean that “self-help” in the
area of ethics is necessarily appropriate. Reaching out to experts as
119. Andrew Scutro, JAG gets 6 months, dismissal in Gitmo case, NAVY TIMES, May 18, 2007, http://www.navytimes.com/news/2007/05/navy_diaz_sentence_070518w/ (statement of Matthew Diaz,
Lieutenant Commander). 120. Diaz, 69 M.J. at 130.
121. See id.
122. Id. 123. Id. at 136.
124. Scutro, supra note 119 (statement of Patrick McLain, Defense Attorney to Matthew Diaz).
125. See Diaz, 69 M.J. at 129.
126. Id. at 130.
127. Id. at 136 n.11 (quoting Dep’t of the Navy, Judge Advocate Instr. 5803.1C, Professional
Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General, Enclosure (1): Rules of Professional Conduct Rule 1.13(b)(3) (Nov. 9, 2004)).
128. See generally id. at 127.
2012] ETHICAL ISSUES OF NATIONAL SECURITY LAW 1079
provided by ethics rules is especially important in the complex arena of
national security law. Here the facts did not support Diaz’s belief (however
earnestly held) that he was in an ethical conflict, which strongly suggests
that consultation with superiors and others qualified to offer advice might
have avoided the career implosion he underwent.
h. Client Relations
A lawyer employed or retained by an organization represents the
organization acting through its duly authorized constituents. 129
129. MODEL RULES, supra note 16, R. 1.6. The full rule reads as follows:
(a) A lawyer employed or retained by an organization represents the organization acting
through its duly authorized constituents. (b) If a lawyer for an organization knows that an officer, employee or other person associated
with the organization is engaged in action, intends to act or refuses to act in a matter related
to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in
substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary
in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to
higher authority in the organization, including, if warranted by the circumstances, to the
highest authority that can act on behalf of the organization as determined by applicable law. (c) Except as provided in paragraph (d), if
(1) despite the lawyer’s efforts in accordance with paragraph (b) the highest authority
that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and
(2) the lawyer reasonably believes that the violation is reasonably certain to result in
substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the
extent the lawyer reasonably believes necessary to prevent substantial injury to the
organization. (d) Paragraph (c) shall not apply with respect to information relating to a lawyer’s
representation of an organization to investigate an alleged violation of law, or to defend the
organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged violation of law.
(e) A lawyer who reasonably believes that he or she has been discharged because of the
lawyer’s actions taken pursuant to paragraphs (b) or (c), or who withdraws under circumstances that require or permit the lawyer to take action under either of those
paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the organization’s highest authority is informed of the lawyer’s discharge or withdrawal.
(f) In dealing with an organization’s directors, officers, employees, members, shareholders or
other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization’s interests are adverse to those of the
constituents with whom the lawyer is dealing.
(g) A lawyer representing an organization may also represent any of its directors, officers,
employees, members, shareholders or other constituents, subject to the provisions of Rule
1.7. If the organization’s consent to the dual representation is required by Rule 1.7, the
consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.
1080 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38
In a national security law practice, the “who is the client” query can be
a complicated question. Harold Koh, the legal advisor to the State
Department, lists a number of individuals among those who he characterizes
as his “extraordinary” clients. 130
These include, for example, Secretary of
State Hillary Clinton, and the President. 131
Such individual representation
is, however, the exception, not the rule for most governmental national
security law practitioners.
The District of Columbia Rules of Professional Responsibility, for
example, provide that the “client of the government lawyer is the agency
that employs the lawyer unless expressly provided to the contrary by
appropriate law, regulation, or order.” 132
Some agencies make this explicit.
Id. 130. Speech, Harold Hongju Koh, Legal Advisor, U.S. Dep’t of State, The Obama Administration and
International Law, at the Annual Meeting of the American Society of International Law, Washington D.C.
(Mar. 25, 2010), http://www.state.gov/s/l/releases/remarks/139119.htm. 131. See id.
132. D.C. RULES OF PROF’L CONDUCT R. 1.6(k) (2006), available at
http://www.dcbar.org/for_lawyers/ethics/legal_ethics/rules_of_professional_conduct/amended_rules/rule _one/rule01_06.cfm. The commentary to the rule provides as follows:
Government Lawyers
[36] Subparagraph (e)(2) was revised, and paragraph (k) was added, to address the unique
circumstances raised by attorney-client relationships within the government. [37] Subparagraph (e)(2)(A) applies to both private and government attorney-client
relationships. Subparagraph (e)(2)(B) applies to government lawyers only. It is designed to
permit disclosures that are not required by law or court order under Rule 1.6(e)(2)(A), but which the government authorizes its attorneys to make in connection with their professional
services to the government. Such disclosures may be authorized or required by statute,
executive order, or regulation, depending on the constitutional or statutory powers of the authorizing entity. If so authorized or required, subparagraph (e)(2)(B) governs.
[38] The term “agency” in paragraph (j) includes, inter alia, executive and independent
departments and agencies, special commissions, committees of the legislature, agencies of the legislative branch such as the Government Accountability Office, and the courts to the extent
that they employ lawyers (e.g., staff counsel) to counsel them. The employing agency has
been designated the client under this rule to provide a commonly understood and easily determinable point for identifying the government client.
[39] Government lawyers may also be assigned to provide an individual with counsel or representation in circumstances that make clear that an obligation of confidentiality runs
directly to that individual and that subparagraph (e)(2)(A), not (e)(2)(B), applies. It is, of
course, acceptable in this circumstance for a government lawyer to make disclosures about the individual representation to supervisors or others within the employing governmental
agency so long as such disclosures are made in the context of, and consistent with, the
agency’s representation program. See, e.g., 28 C.F.R. § 50.15 and 50.16. The relevant
circumstances, including the agreement to represent the individual, may also indicate whether
the individual client to whom the government lawyer is assigned will be deemed to have
granted or denied informed consent to disclosures to the lawyer’s employing agency. Examples of such representation include representation by a public defender, a government
lawyer representing a defendant sued for damages arising out of the performance of the
2012] ETHICAL ISSUES OF NATIONAL SECURITY LAW 1081
In the U.S. Air Force, the Rules of Professional Conduct state that “[e]xcept
when authorized to represent an individual client or the government of the
United States, an Air Force judge advocate or other Air Force lawyer
represents the Department of the Air Force acting through its authorized
officials.” 133
The explanatory notes point out that when “an Air Force
official, member, or employee, acting within the scope of his or her official
duties, communicates with an Air Force lawyer, the communication is
confidential [and] . . . . [u]nder these circumstances, the official, member or
employee is, in essence, the Air Force.” 134
As both military officers and legal professionals, attorneys in the armed
forces face practical challenges. It is easy in the military for a commander
to assume that the uniformed lawyer assigned to his unit is also “his”
personal counsel, notwithstanding circumstances where the Air Force’s
interests conflict with those of individuals, including commanders. Thus, it
is especially important that this be made clear before there is any
misunderstanding about client confidences. 135
The “who is the client?” question can become even more complicated
for military lawyers and others assigned to commands composed of
international partners. Even though, for example, an attorney may be
assigned as a legal advisor to a coalition operation, the client will remain the
attorney’s sponsoring organization (e.g., the U.S. Air Force).
There is a practical issue as well—few lawyers would be competent to
advise other national contingents on their national responsibilities, not to
mention their international responsibilities under treaty law where the
interpretation may be subject to particular reservations and other
qualifications by a specific coalition partner. It is imperative, then, that a
lawyer so assigned make clear the limits of the legal assistance he or she
can provide.
Like the Navy, 136
the Air Force has a process by which military
attorneys can seek ethical and other guidance from senior lawyers,
defendant’s government employment, and a military lawyer representing a court-martial
defendant.
Id.
133. AIR FORCE JUDGE ADVOCATE GENERAL CORPS, RULES OF PROF’L CONDUCT R. 1.13(a) (2005) [hereinafter AIR FORCE RULES], available at http://www.caaflog.com/wp-content/
uploads/AirForceRulesofProfessionalConduct.pdf.
134. Id.
135. See, e.g., id., R. 1.13(d) (“In dealing with Air Force officials, members, employees, or other
persons associated with the Air Force, a lawyer shall explain that the Air Force is the lawyer’s client
when it is apparent that the Air Force’s interests are adverse to those of the officials, members, or em- ployees with whom the lawyer is dealing.”).
136. See Diaz, 69 M.J. at 136 n.11.
1082 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38
especially when confronted with situations where the attorney believes that
an Air Force official “is acting, intends to act, or refuses to act in an official
matter in a way that is either a violation of the person’s legal obligations to
the Air Force or a violation of law which reasonably might be imputed to
the Air Force.” 137
This access to advice and guidance from senior attorneys is protected by
law. For example, the Uniform Code of Military Justice specifically states
that military legal officers are “entitled to communicate directly with the
staff judge advocate or legal officer of a superior or subordinate command,
or with the Judge Advocate General.” 138
The ability to circumvent, if
necessary, the normal chain of command is no small prerogative given that
the “the Armed Services comprise a hierarchical society, which is based on
military rank.” 139
The law also helps assure the organization gets candid, apolitical legal
advice from military lawyers. In fact, the law prohibits any interference
from any “officer or employee of the Department of Defense” with respect
to the rendering of “independent legal advice.” 140
Furthermore, in order to
reinforce the independence of the provision of legal advice from uniformed
attorneys, the law also designates the Judge Advocate General, as opposed
to any non-legal officer, as responsible for directing “the officers of the Air
Force designated as judge advocates in the performance of their duties.” 141
All of these statutory provisions help ensure that a military lawyer can carry
out his or her ethical responsibilities to the organizational client without
running afoul of the duties and responsibilities of a commissioned officer.
They are also invaluable in ensuring the delivery of independent and candid
advice, as discussed below.
137. AIR FORCE RULES, supra note 133, R. 1.13(b). 138. 10 U.S.C § 806 (2011).
139. U.S. v. Means, 10 M.J. 162, 165 (C.M.A. 1981). 140. 10 U.S.C § 8037(f) provides:
(f) No officer or employee of the Department of Defense may interfere with— (1) the ability of the Judge Advocate General to give independent legal advice to the
Secretary of the Air Force or the Chief of Staff of the Air Force; or
(2) the ability of officers of the Air Force who are designated as judge advocates who are
assigned or attached to, or performing duty with, military units to give independent legal
advice to commanders.
10 U.S.C § 8037(f) (2011).
141. Id. § 8037(c)(1).
2012] ETHICAL ISSUES OF NATIONAL SECURITY LAW 1083
i. Lawyer as Advisor
In representing a client, a lawyer shall exercise independent
professional judgment and render candid advice. In rendering
advice, a lawyer may refer not only to law but to other
considerations such as moral, economic, social and political
factors, that may be relevant to the client’s situation. 142
This section is one of the most important parts of the Model Rules for
the national security law practitioner. The very nature of many national
security issues is such that their proper resolution can only be had when a
range of factors—such as those listed in the rule—are brought to bear on the
client’s situation. Yet there are some national security lawyers who
perceive their role rather narrowly. Judge Alberto Gonzales, the former
Attorney General who has been soundly critiqued for his part in the
rendering of suspect advice on coercive interrogation techniques, said in an
interview for Esquire magazine, “Putting my lawyer hat aside, the notion
that we‘d have to get legalistic about torture, yeah, can be offensive to me.
It’s inconsistent with American values. But as a lawyer—as a lawyer—you
have to try to put meaning to the words passed by Congress.” 143
Actually, if the law is truly inconsistent with “American values” then
the law itself is suspect, and the national security lawyer needs to make this
clear to the client. Perspective matters. In a 2006 essay entitled “Cooler
Heads: The Difference between the President’s Lawyers and the
Military’s,” Professor Richard Schragger illustrated this importance of
perspective. In discussing the dispute at that time between military lawyers
(who eschewed coercive interrogation techniques and other actions
designed to eviscerate the Geneva Conventions and certain aspects of
international and domestic law) and the then-Administration’s civilian
attorneys who advocated just such approaches, Schragger concluded:
[M]ilitary lawyers understand that when you ask human beings to
kill other human beings, rules of decency are required. War does
not erase the line between legal and illegal killings, legal and illegal
acts—war accentuates it. Establishing and policing that line
becomes even more important when your client is the one likely to
cross it.
142. MODEL RULES, supra note 16, R. 2.1. 143. John H. Richardson, Alberto Gonzales: What I’ve Learned, ESQUIRE (Dec. 9, 2009, 6:30
AM), http://www.esquire.com/features/what-ive-learned/alberto-gonzales-torture-quotes-0110.
1084 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38
Civilian lawyers may not appreciate this. Civilian lawyers are
educated and socialized into a legal culture that takes the rule of law
for granted. The stability of our legal system allows us to do what
we do best: seek ways for our clients to avoid legal mishap. The law
is something we need to strategize around because it often functions
to limit our clients’ options, not serve them. 144
It is just these kinds of subtleties that can be vitally important in
national security matters, and is a clear reason why the broader scope of
advice a lawyer can provide is so important. Moreover, it is vital for a
national security practitioner not to underestimate the extreme pressure
under which some clients must operate. Consider the observation of a
former senior military commander:
When I go to my lawyers, I don’t ask, “okay, tell me how I can’t do
this.” I go to my lawyers and say, “How can I do what I need to do
and not go to jail? How can I do it legally? . . . The legal advisor
has to understand that his job is to find a way through the
interpretations and legal precedence for the things we have to do, so
I can protect my people going out in harms’ way.” 145
Sensitivity to the often life-and-death nature of national security issues
cannot be overemphasized, and it is one reason why the national security
law practitioner needs to be prepared to bring to bear every relevant
consideration to the decision-making process, legal and otherwise. At the
same time, however, the practitioner needs to keep in mind that there must
be a clear distinction between legal advice, and advice that incorporates
considerations that fall short of a legal mandate. However, the lawyer’s
recommendation need not yield to simply giving “meaning to the words
passed by Congress.” 146
National security clients need more from their lawyers than mere rote
recitations of the meanings of statutes. Senator Lindsey Graham said in a
2004 interview that the “military lawyer [JAG] is really the conscience of
the military.” 147
Similarly, Harold Koh said that his State Department
144. Richard C. Schragger, Cooler Heads: The difference between the president’s lawyers and the
military’s, SLATE (Sept. 20, 2006, 5:10 PM), http://www.slate.com/id/2150050/?nav/navoa.
145. Randon H. Draper, Interview with a JFACC: A Commander’s Perspective on the Legal
Advisor’s Role, THE JAG WARRIOR, Autumn 2002, at 21–22.
146. See Richardson, supra note 143. 147. Interview with Lindsey Graham, FRONTLINE (Oct. 26, 2004), http://www.pbs.org/wgbh/pages
/frontline/shows/pentagon/interviews/graham.html.
2012] ETHICAL ISSUES OF NATIONAL SECURITY LAW 1085
attorneys serve as the “conscience for the U.S. Government with regard to
international law.” 148
Koh goes on to explain that “one of the most important roles of the
Legal Adviser is to advise the Secretary when a policy option being
proposed is ‘lawful but awful.’” 149
He then quotes one of his predecessors,
Herman Pfleger, for the proposition that, “You should never say no to your
client when the law and your conscience say yes; but you should never, ever
say yes when your law and conscience say no.” 150
This is advice the
national security practitioner might find useful to keep in mind if confronted
with a situation that is, as Judge Gonzales puts it, “inconsistent with
American values.” 151
j. Conduct Before a Tribunal
A lawyer shall not knowingly: (1) make a false statement of fact or
law to a tribunal or fail to correct a false statement of material fact
or law previously made to the tribunal by the lawyer; (2) fail to
disclose to the tribunal legal authority in the controlling
jurisdiction known to the lawyer to be directly adverse to the
position of the client and not disclosed by opposing counsel; or (3)
offer evidence that the lawyer knows to be false . . . . 152
As we have already seen, the importance of candor for the national
security practitioners is critical as so many of the cases involve either
matters that are properly classified, or issues in which the courts depend
upon the integrity of the government representations. Unfortunately, history
148. Koh, supra note 130. 149. Id.
150. Id.
151. Richardson, supra note 143. 152. MODEL RULES, supra note 16, R. 3.3. The full paragraph (a) reads as follows:
(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of
material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the
lawyer to be directly adverse to the position of the client and not disclosed by opposing
counsel; or (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a
witness called by the lawyer, has offered material evidence and the lawyer comes to know
of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary,
disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony
of a defendant in a criminal matter, that the lawyer reasonably believes is false.
Id.
1086 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38
shows that reliance is not always justified. Classic examples are the World
War II Japanese internment cases, Korematsu v. U.S. 153
and Hirabayashi v.
U.S. 154
After the Japanese attack on Pearl Harbor in 1941, war hysteria
eventually turned on thousands of Japanese-Americans living on the West
Coast. 155
Because they were suspected of being potential “fifth columnists”
or spies, President Roosevelt issued an executive order authorizing military
authorities to remove Japanese-Americans from areas near the coast. 156
Eventually, 100,000 were removed and sent to internment camps. 157
The
Japanese Internment Cases challenged these actions, but in both instances
the government’s authority was upheld. 158
In 2011, however, Neal Katyal, the then Acting Solicitor General of the
United States, made a series of disclosures that reflect poorly on the ethics
of his World War II predecessor, Charles Fahy. 159
Katyal reports that a
critical intelligence document—the Ringle Report—“found that only a small
percentage of Japanese Americans posed a potential security threat, and that
the most dangerous were already known or in custody.” 160
Even though the
Solicitor General knew of this very significant information, he withheld it
from the Supreme Court. 161
Instead, the Solicitor General “argued that it was impossible to
segregate loyal Japanese Americans from disloyal ones.” 162
He also failed
to tell the Court that allegations “that Japanese Americans were using radio
transmitters to communicate with enemy submarines off the West Coast,
had been discredited by the FBI and FCC.” 163
According to Katyal, “to
make matters worse, [he then] relied on gross generalizations about
Japanese Americans, such as that they were disloyal and motivated by
‘racial solidarity.’” 164
153. 323 U.S. 214 (1944).
154. 320 U.S. 81 (1943).
155. See generally id. at 113-14. 156. Executive Order 9066: The President Authorizes Japanese Relocation, HISTORY MATTERS,
http://historymatters.gmu.edu/d/5154/ (last visited Aug. 29, 2012). See also Exec. Order No. 9006, 7 Fed. Reg. 1407, p.2 (Feb. 19, 1942).
157. Tracey Russo, Confession of Error: The Solicitor General’s Mistakes During the Japanese
American Internment Cases, THE JUSTICE BLOG (May 20, 2011), http://blogs.justice.gov/main/archives/ 1346.
158. Korematsu v. U.S., 323 U.S. at 219; Hirabayashi v. U.S., 320 U.S. at 105.
159. See Russo, supra note 157.
160. Id.
161. See id.
162. Id. 163. Id.
164. See Russo, supra note 157.
2012] ETHICAL ISSUES OF NATIONAL SECURITY LAW 1087
This ethically horrific behavior by a lawyer holding such an important
public office is hard to fathom, but does represent how a wartime mania can
warp the thinking of the very people whom democracies depend upon to be
paragons of composure and rational behavior. Can we dismiss these cases
as anomalies from more than half a century ago? Consider the case of
Ashcroft v. al-Kidd. 165
Al-Kidd involved a Kansas-born, former University of Idaho football
player named Lavni T. Kidd who converted to Islam while in college and
changed his name to Abdullah al-Kidd. 166
After 9/11, al-Kidd was
questioned by authorities about an acquaintance, a Saudi graduate student
named Sami Omar al-Hussayen, who was suspected of using his computer
skills to aid terrorists. 167
Although he cooperated with the FBI when asked
about al-Hussayen, al-Kidd was arrested on a “material witness” warrant in
2003 as he boarded a plane to Saudi Arabia to take a course of study in
Islam. 168
The affidavits that the FBI used to obtain the warrant proved to be
wildly inaccurate. 169
Al-Kidd was kept in jail for sixteen days and on supervised release until
al-Hussayen’s trial concluded fourteen months later. 170
According to the
American Civil Liberties Union, while in federal custody, al-Kidd was
“kept under extremely harsh conditions,” including being “kept awake for
hours on end, with a bright light shining in his cell 24/7.” 171
In addition,
whenever he left his cell he was “shackled at the wrists, ankles, and waist”
and at “one point, he was left naked for hours in plain view of other clothed
prisoners and guards.” 172
What is more, when released from jail, he was
still “kept under restrictive conditions for months that forced him to
abandon an educational scholarship and led to the breakdown of his
marriage and career.” 173
Importantly, al-Kidd was not the only Muslim-American treated this
way. According to the Associated Press, al-Kidd was one of “about 70
men, almost all Muslims, who were arrested and held in the months and
165. Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011).
166. See al-Kidd v. Aschcroft, 580 F.3d 949, 952 (9th Cir. 2009).
167. See id. 168. 18 U.S.C. § 3144 (2011) (explaining the purpose and manner of procurement of a material
witness warrant).
169. See al-Kidd, 580 F.3d at 953.
170. See id.
171. Hannah Robbins, What’s at stake in Ashcroft v. al-Kidd, ACLU BLOG OF RIGHTS (Mar. 4,
2011, 6:30 PM), http://www.aclu.org/blog/national-security/whats-stake-ashcroft-v-al-kidd. 172. Id.
173. Id.
1088 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38
years after Sept. 11” under the material witness statute. 174
At the time,
Attorney General John Ashcroft, like other officials, bragged that
“aggressive detention of lawbreakers and material witnesses is vital to
preventing, disrupting or delaying new attacks.” 175
Like many others, al-
Kidd was never called as a witness or charged with any crime (and al-
Hussayen was tried but not convicted). 176
After his release al-Kidd sued Ashcroft claiming, in essence, that the
former U.S. Attorney General had had his subordinates use the Material
Witness Statute as a pretext to detain terrorist suspects preventively, that is,
persons suspected of terrorism but for whom evidence was lacking for an
arrest and criminal charge. 177
After extended litigation, the Supreme Court
held that Ashcroft was entitled to qualified immunity because “at the time
of [the detainee’s] arrest . . . not a single judicial opinion had held that
pretext could render an objectively reasonable arrest pursuant to a material-
witness warrant unconstitutional.” 178
Although she concurred in the outcome, Justice Ginsburg (with Justices
Breyer and Sotomayor) nevertheless found the Court’s assumption of the
existence of a validly obtained material witness warrant to be “puzzling.” 179
She questioned whether an affidavit supporting a material witness warrant is
valid where the affiant fails to tell the issuing magistrate that there is no
intent to call the subject of the warrant as a witness in any trial. 180
She also
questioned the validity of the warrant where the affidavit “[did] not disclose
that al-Kidd had cooperated with FBI agents each of the several times they
had asked to interview him.” 181
In addition, she said:
[T]the Magistrate Judge was not told that al-Kidd’s parents, wife,
and children were all citizens and residents of the United States. In
addition, the affidavit misrepresented that al-Kidd was about to take
a one-way flight to Saudi Arabia, with a first-class ticket costing
174. U.S. citizen recalls ‘humiliating’ post-9/11 arrest, FOX NEWS (Feb. 27, 2011),
http://www.foxnews.com/us/2011/02/27/citizen-recalls-humiliating-post-11-arrest/.
175. Id. 176. Saudi grad student cleared of terror charges in Idaho, BOSTON.COM (June 11, 2004),
http://articles.boston.com/2004-06-11/news/29198763_1_visa-fraud-counts-counts-of-visa-fraud-sami-
omar-al-hussayen.
177. See al-Kidd, 580 F.3d at 955–56.
178. Al-Kidd, 131 S. Ct. at 2074.
179. See id. at 2087 (Ginsburg, J., concurring). 180. See id.
181. See id.
2012] ETHICAL ISSUES OF NATIONAL SECURITY LAW 1089
approximately $5,000; in fact, al-Kidd had a round-trip, coach-class
ticket that cost $1,700. 182
With this cacophony of misstatements and omissions in the material
used to justify the warrant, the case went back to the district court, where a
federal magistrate was appointed to do a report and recommendation on
cross-motions for summary judgment involving two individual defendants
(the FBI agents), 183
and a report and recommendation on cross-motions for
summary judgment involving the United States. 184
Both of these reports
generally favored al-Kidd, and may lead to his eventual compensation for
what he underwent.
What is, to use Justice Ginsburg’s word, “puzzling” is the role of the
lawyers in al-Kidd. Just because they may enjoy qualified immunity does
not explain how or why the affidavit misinformation that Justice Ginsburg
cited in her opinion failed to free al-Kidd from the restrictions earlier. Even
if the attorneys involved did not manufacture the misinformation, at some
point during al-Kidd’s ordeal someone from the government should have
stepped forward to correct the record. It would seem that, at a minimum, a
better exercise of due diligence in the case of an individual being detained
without charges would be the ethically proper approach.
Moreover, despite the Court’s finding that there were no cases finding a
pretextual use of a material witness warrant unconstitutional, it would also
seem ironic that more had not been learned from the Japanese internment
cases. They ought to stand for the proposition that preventive detention by
any other name is still preventive detention, and that is something Congress
has yet to authorize in terrorism cases for American citizens residing in the
United States. The national security practitioner, while remaining open to
innovative interpretations of the law, nonetheless must be extremely wary of
proposals which have atrocious parallels in history. 185
182. See id. at 2088.
183. Report and Recommendation on Cross Motions for Summary Judgment: Individual Defend- ants Michael Gneckow and Scott Mace at 2–3, Abdullah al-Kidd v. Alberto Gonzales, No. 1:05-cv-
00093-EJL-MHW (Dist. Idaho June 18, 2012), http://www.lawfareblog.com/wp-content/uploads/2012/
06/al-Kidd-FBI-liable.pdf.
184. Report and Recommendation on Cross Motions for Summary Judgment: United States at 2,
Abdullah al-Kidd v. Alberto Gonzales, No. 1:05-cv-00093-EJL-MHW (Dist. Idaho June 18, 2012),
http://www.lawfareblog.com/wp-content/uploads/2012/06/al-kidd-fed-tort.pdf. 185. Compare Korematsu, 323 U.S. 214, and Hirabayashi, 328 U.S. 81, with al-Kidd, 131 S. Ct.
2074.
1090 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38
k. Pro Bono
Every lawyer has a professional responsibility to provide legal
services to those unable to pay. 186
One of the most interesting impacts on the legal profession of the post-
9/11 era is the proliferation of pro bono legal support for the suspected
terrorists detained at Guantánamo. Professor Jack Goldsmith of Harvard
points out that after the Supreme Court’s landmark 2004 decision in Rasul
v. Bush 187
established that the detainees were entitled to challenge their
detention in the courts, “pro bono offers from hundreds of attorneys,
including many from America’s most elite law firms[,]” came to the
detainees. 188
According to Goldsmith, these “lawyers—who came to be
known as ‘the GTMO Bar’—quickly flooded federal courts with habeas
corpus petitions from detainees seeking release.” 189
186. MODEL RULES, supra note 16, R. 6.1. The full rule reads as follows:
Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services
per year. In fulfilling this responsibility, the lawyer should:
(a) provide a substantial majority of the (50) hours of legal services without fee or
expectation of fee to:
(1) persons of limited means or (2) charitable, religious, civic, community, governmental and educational organizations
in matters that are designed primarily to address the needs of persons of limited means;
and (b) provide any additional services through:
(1) delivery of legal services at no fee or substantially reduced fee to individuals, groups
or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in
matters in furtherance of their organizational purposes, where the payment of standard
legal fees would significantly deplete the organization’s economic resources or would be otherwise inappropriate;
(2) delivery of legal services at a substantially reduced fee to persons of limited means;
or (3) participation in activities for improving the law, the legal system or the legal
profession.
In addition, a lawyer should voluntarily contribute financial support to organizations that
provide legal services to persons of limited means.
Id.
187. 542 U.S. 466 (2004).
188. Jack Goldsmith, The Great Legal Paradox of Our Time: How Civil Libertarians Strength-
ened the National Security State, THE NEW REPUBLIC (Mar. 16, 2012), http://www.tnr.com/article/
politics/101561/guantanamo-bay-prison-obama?page=0,1. 189. Id. For a discussion of habeas corpus actions, see generally Habeas Corpus, LEGAL
INFORMATION INSTITUTE (Aug. 19, 2010, 5:17 PM), http://www.law.cornell.edu/wex/habeas_corpus.
2012] ETHICAL ISSUES OF NATIONAL SECURITY LAW 1091
Other experts recently noted that since “2002, over 900 attorneys have
joined the network sponsored by [Center for Constitutional Rights] filing
individual habeas petitions for approximately 430 detainees.” 190
According
to these analysts, after several Supreme Court cases legitimated habeas
litigation:
[L]arge firms sought out habeas clients—the legal market favored
firm representation of detainees. In fact, representation of
Guantánamo detainees became part of law firms’ recruitment
efforts for new associates. Yet the cases did not only appeal to
lawyers new to the practice. Detainee representation was high-
profile legal work, and the firms staffed these matters with senior
partners, signaling to attorneys within the firm, as well as to clients,
the value the firm placed on the work. 191
A media report similarly reflected the popularity of detainee representation.
As one lawyer involved in the process put it:
“I had always worried that we would get some input from clients
that was less than supportive,” [the defense counsel] said. “But we
must have gotten 10 e-mails, phone calls, personal contacts from
Fortune 500 companies that said the opposite. One big client said,
‘That makes me want to send you more worknot less.’” 192
It was perhaps frustration over the enormous resources the civilian bar
provided the terrorist suspects that led a former Deputy Assistant Secretary
of Defense for Detainee Affairs, Cully Stimson, to make some profoundly
ill-considered remarks. In a 2007 interview, he expressed dismay “that
lawyers at many of the nation’s top firms were representing prisoners at
Guantánamo Bay, Cuba, and that the firms’ corporate clients should
consider ending their business ties.” 193
Predictably, there was an explosion of criticism, with numerous
commentators rebuking Stimson for attacking the honorable practice of
providing vigorous, pro bono representation to even the most reviled
accused. The obviously upset editors of the Washington Post wrote that the
190. Laurel E. Fletcher, Alexis Kelly & Zulaikha Aziz, Defending the Rule of Law: Reconceptual-
izing Guantánamo Habeas Attorneys, 44 CONN. L. REV. 617, 648 (2012), http://connecticutlaw
review.org/files/2012/04/7-Fletcher-Kelly-Aziz.pdf.
191. Id. at 650 (emphasis added).
192. Paul Shukovsky, Firm’s Unlikely Client: Bin Laden’s Ex-Driver, SEATTLE POST-
INTELLIGENCER, May 27, 2008, at 1 (quoting statement from Harry Schneider). 193. Neil M. Lewis, Official Attacks Top Law Firms Over Detainees, N.Y. TIMES, Jan. 13, 2007,
http://www.nytimes.com/2007/01/13/washington/13gitmo.html.
1092 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38
detainee lawyers were “upholding the highest ethical traditions of the bar by
taking on the most unpopular of defendants.” 194
Though not offering a
defense for Stimson’s remarks, Harvard law professor Charles Fried
speculated that perhaps Stimson was “annoyed that his overstretched staff
lawyers are opposed by highly trained and motivated elite lawyers working
in fancy offices with art work in the corridors and free lunch laid on in
sumptuous cafeterias.” 195
Regardless, Stimson apologized and promptly
resigned in an effort to quiet the furor. 196
Similar criticism arose in 2010 amid questions about the Justice
Department’s hiring of a number of lawyers who had previously represented
Guantánamo detainees. In an open letter, a group of “attorneys, former
officials, and policy specialists who have worked on detention issues”
admirably stated the case:
The American tradition of zealous representation of unpopular
clients is at least as old as John Adams’s representation of the
British soldiers charged in the Boston massacre. People come to
serve in the Justice Department with a diverse array of prior private
clients; that is one of the department’s strengths . . . . 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. 197
Yet even as one salutes the outpouring of pro bono support for the
terrorist detainees, support that no doubt can be traced to finest traditions of
the Bar to provide quality representation to all accused, concern must be
expressed by the paradox that foreign terrorists may be—proportionately—
greater beneficiaries of the legal profession’s beneficence than are needy
U.S. citizens not accused of national security crimes.
This paradox is suggested by Attorney General Eric Holder’s speech to
the ABA in February 2012. In it he lamented the “crisis” with respect to
indigents’ access to legal talent:
194. Unveiled Threats, WASH. POST, Jan. 12, 2007, at A18, available at http://www.washington post.com/wp-dyn/content/article/2007/01/11/AR2007011101698.html.
195. Charles Fried, Mr. Stimson and the American Way, WALL STREET J., Jan. 16, 2007,
http://online.wsj.com/article/SB116892102246577373-search.html.
196. Ashby Jones, Cully Stimson Resigns, WALL STREET J., Feb. 2, 2007,
http://blogs.wsj.com/law/2007/02/02/cully-stimson-resigns/.
197. Benjamin Wittes et al., Statement on Justice Department Attorney Representation of Guantá- namo Detainees, BROOKINGS INSTITUTION (Mar. 8, 2010), http://www.brookings.edu/research/opinions/
2010/03/07-guantanamo-statement.
2012] ETHICAL ISSUES OF NATIONAL SECURITY LAW 1093
Across the country, public defender offices and other indigent
defense providers are underfunded and understaffed. Too often,
when legal representation is available to the poor, it’s rendered less
effective by insufficient resources, overwhelming caseloads, and
inadequate oversight.
As a result, too many defendants are left to languish in jail for
weeks, or even months, before counsel is appointed. Too many
children and adults enter the criminal justice system with nowhere
to turn for guidance—and little understanding of their rights, the
charges against them, or the potential sentences—and collateral
consequences—that they face. Some are even encouraged to waive
their right to counsel altogether. 198
It is not without irony then, that the legal profession, notwithstanding its
outpouring of very healthy support for foreign terrorist detainees,
nevertheless finds itself facing inadequate representation for needy
Americans. 199
This is plainly an appropriate subject not only for national
security practitioners but for the entire bar. Nevertheless, the real test of the
national security bar’s ethics may come if (when?) there is another horrific
event, and doing the right thing by defending accused terrorists is not as
popular as it may be today. It is in times of crisis that the ethics of the legal
profession are most tested, and practitioners need to steel themselves for
those moments—which are sure to come to pass.
III. CONCLUDING OBSERVATION: THE INDISPENSABILITY OF MORAL
COURAGE
Although this Article has sought to illustrate some of the ethical
challenges national security law practitioners face, it would be a mistake to
assume that national security practitioners are somehow more prone to
ethical failings than others in the legal profession. Nothing could be further
from the facts.
Professor H. Jefferson Powell, who until May 2012 served as the deputy
assistant attorney general in the OLC at the Department of Justice, reflected
upon his work with lawyers in a range of government agencies and
commented that what struck him was “how dedicated the vast majority of
those people are to doing responsible legal work, in good faith and for the
198. Speech, Eric Holder, Attorney General, at the American Bar Association’s Summit on Indi-
gent Defense, New Orleans, LA (Feb. 4, 2012), www.justice.gov./iso/opa/ag/speeches/2012/ag-speech- 120204.html.
199. Compare id. with Shukovsky, supra note 192.
1094 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 38
highest of motives—pro bono publico, for the public good.” 200
He added
that what impressed him “about the vast majority of the lawyers with whom
[he] dealt is their conscientious commitment to the law and to providing
responsible legal advice.” 201
Powell also believed the “particular contribution of government
lawyers” is to “enable the government to function and to pursue the policies
that the policymakers prefer but to do so within the law [and] to tell the
policymakers when necessary that a particular goal or policy cannot be
pursued lawfully.” 202
In the national security context, this can be
particularly difficult because the stakes are so high, time is so short, and the
consequences of the proverbial path not taken so difficult to ascertain or
predict.
Telling policymakers and other clients what they need to hear versus
what they may want to hear requires courage; indeed, few legal disciplines
require the practitioners to exhibit as much courage as does a national
security law practice. Unlike most national security activities, the kind of
courage required is not, however, the physical type, but moral courage. 203
This can be hard to muster for anyone, even in the armed forces. British
historian Max Hastings points out that “physical bravery is found [in the
military] more often than the spiritual variety.” 204
“Moral courage,” he
says, “is rare.” 205
Yet it is especially important for those in the legal
profession to demonstrate it. There is no doubt that in national security
matters especially, there are times when legal advice is unwelcome, but that
is when moral courage is most needed. General Short admonishes that in
combat situations:
[D]o not be afraid to tell [the commander] what he really does not
want to hear—that he has put together this exquisite plan, but his
targets indeed are not valid ones or his targets may in fact violate
the law of armed conflict . . . . It will take enormous courage to do
200. David Jarmul, Kind Words for Colleagues in Washington, DUKE TODAY (July 14, 2012), http://today.duke.edu/2012/07/powelldc (statement of H. Jefferson Powell).
201. Id. 202. Id.
203. In a 1990 case called U.S. v. Stidman, the Air Force Court of Criminal Appeals observed:
[T]here are two kinds of courage involved in the profession of arms and the profession of
law. On the one hand, many are called upon for physical courage. On the other hand, judges
are called upon from time to time for moral courage−the courage to subordinate a personal
philosophy of the law or private distaste . . . to decide an issue logically and dispassionately.
29 M.J. 999, 1002 (A.F.C.M.R. 1990). 204. MAX HASTINGS, WARRIORS: PORTRAITS FROM THE BATTLEFIELD, at xvii (2005).
205. Id.
2012] ETHICAL ISSUES OF NATIONAL SECURITY LAW 1095
that in particular circumstances because you’re always going to be
junior to your boss . . . . But you have got to be able to do that. 206
Judge James E. Baker of the Court of Appeals for the Armed Forces
argues in his book In the Common Defense that the law depends upon the
“moral courage of lawyers who raise tough questions, who dare to argue
both sides of every issue, who insist on being heard at the highest levels of
decision-making, and who ultimately call the legal questions as they believe
the Constitution dictates . . . .” 207
Judge Baker is, of course, exactly right. No set of rules can substitute
for the character of individuals who are ready to do the right thing,
regardless of the personal consequences. Only those prepared to make
whatever sacrifice is necessary to ensure that the nation conducts its
national security affairs in a lawful—and authentically ethical—manner are
truly worthy of the sobriquet of a national security law practitioner.
206. Operation Allied Force, supra note 91. 207. JAMES E. BAKER, IN THE COMMON DEFENSE: NATIONAL SECURITY LAW FOR PERILOUS
ISSUES 325 (2007).
