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Flap over Gitmo lawyers overshadows other ethical issues

Attorneys — including some from Minnesota — representing Guantanamo detainees are under fire, but the debate is distracting from other important ethical questions.

A U.S. Army guard stands in a corridor of cells in Camp Five, a detention facility at the Guantanamo Bay Naval Station.
REUTERS/Joe Skipper
A U.S. Army guard stands in a corridor of cells in Camp Five, a detention facility at the Guantanamo Bay Naval Station.

It’s tempting to dismiss the latest furor over American attorneys representing Guantanamo detainees as yet another example of posturing to score political points.

There’s so much posturing these days that the political landscape seems to be a stage for a match of the kids’ game Statues — players have to freeze in unreasonable positions, and if you can’t hold your position your team loses points. I can’t be the only exasperated American saying, “Enough already!”

I had second thoughts, though, about this Guantanamo-related flare up. The issues surrounding the detainees at Guantanamo Bay have been deeply divisive for our nation. We have yet to close the gaps they created in our collective sense of American justice and values.

I asked former Vice President Walter Mondale this week whether he thinks this debate over the attorneys fits into our unfinished discussion of the Guantanamo issues.

It does, he said.

Walter Mondale
REUTERS/Mike Segar
Walter Mondale

“We are trying to find justice here,” Mondale said. “We are trying to avoid abuse, torture and inhumanity. And we need to talk it out.”

Further support for that view came from Richard Painter, a University of Minnesota law professor, who said the uproar over defense attorneys now working at the Justice Department has drowned out valid debate about their future roles in any Guantanamo cases.

Legitimate questions, Painter said, have been “swallowed up in this whole hullabaloo about whether the detainees ought to be represented at all.”

Hence my second thought.

Seven lawyers and a video
The flap erupted earlier this month when Keep America Safe  —  a conservative group co-founded by Elizabeth Cheney, daughter of the former vice president —  released the video below alleging that the Justice Department was keeping secret the names of seven lawyers who formerly had helped represent Guantanamo detainees and now work for Attorney General Eric Holder. In the video, the attorneys are called “The Al-Qaeda 7.”

The next day Fox News reported the names of the seven lawyers, saying their identities had been confirmed by a Justice Department spokesman. Most of them had played “only minor and short-lived roles in advocating for detainees,” Fox reported, such as helping teams of lawyers prepare legal briefs for cases that went before the U.S. Supreme Court.

Shameful
But Keep America Safe’s implication that there was something unpatriotic and dangerous about representing accused terrorists set off a furor in legal circles.

Prominent conservative legal scholars — including Kenneth Starr, former special prosecutor in the Clinton-Lewinski scandal and now dean at Pepperdine University School of Law — joined more liberal experts in a statement denouncing the attacks on the attorneys as “shameful.”

“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,” the statement said.

The attacks undermine the nation’s justice system, Starr and the others said.

Still, the debate continues in Minnesota and around the nation. Last Sunday, in a Star Tribune opinion column,  conservative commentator Katherine Kersten said the defense attorneys are “naïve” and “likely predisposed to view the U.S. military as ruthless and unjust.” A headline on the column said the attorneys’ volunteer work is “proterrorist.”

Katherine Kersten
MinnPost photo by Bill Kelley
Katherine Kersten

Defend the hated and the loved
Mondale was emphatic about where he stands in this chapter of the great Guantanamo debate. The attacks on the attorneys are “an outrage” and “a cheap shot,” he said.

“Lawyers are trained to be officers of the court,” Mondale said. “And we are expected to provide legal defense for the hated as well as the loved.”

In that context, a lawyer is not held responsible for the acts of the client. Instead, each lawyer is responsible for the case he or she puts forth on a client’s behalf.

“If we took the position that lawyers couldn’t take cases like this it would fundamentally change the tradition of the American legal system,” Mondale said.

Mondale is a senior counsel in the Minneapolis law firm Dorsey & Whitney LLP. At least one attorney working for that firm’s New York office has represented Guantanamo detainees.

“That’s what lawyers do,” Mondale said. “That doesn’t make them culpable for what the client may have done.”

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Lost clients and a death threat
Four Minneapolis-based attorneys have donated their own time to work on the case of an Algerian detainee who recently was sent from Guantanamo to his homeland. I have interviewed those lawyers several times over the years, but none of them responded to my request for an interview this week. (Update: One of them called to say she had left a message earlier in the week; somehow, it got lost. At this point, she had nothing to add to the story.)

They told me in connection with an earlier story that some law firms have lost clients because their attorneys were representing Guantanamo detainees. They also said that at least one of their colleagues on the Guantanamo cases had received a telephone death threat in the middle of the night.

Other legal experts in Minnesota have weighed in, though, on the national debate.

One is Painter, the U of M law professor. He served from 2005 to 2007 as associate counsel to then President George W. Bush. He was chief ethics lawyer for the White House.

Painter agrees with Mondale, Starr and other experts, saying it’s “just a lot of nonsense” to even suggest that American attorneys should not represent detainees.

Lawyers for really bad people
Indeed, attorneys had an obligation to take these cases, Painter said.

Richard Painter
Richard Painter

“Even really bad people need to be represented by lawyers,” he said.   

That is true even in cases where detainees have been released and gone on to commit terrorist acts, he said.

It’s the government’s job to lock up guilty people. And the process for determining guilt requires that attorneys for both sides argue the best cases they can so that a conviction will be seen as fair.

If the upshot is that some criminals “get off the hook and they hurt somebody again, I don’t think that the lawyers representing them are unethical,” he said.

A key: no conflicts of interest
A key to the process is not lopsided arguments, Painter said, but ensuring that lawyers making the arguments are free of conflicts of interest.

That is where the Justice Department bears watching now, he said.

He has argued in the New York Times and the Weekly Standard that it would be a conflict of interest for attorneys who defended alleged terrorists to now help the Justice Department handle any terrorist cases.

“These lawyers should work for the Justice Department, but they should work on other matters,” he said in a letter to the Times editor.

But why say they should not work on “any” terrorist cases? Because, Painter argued, “The government has stated that most of these people are acting in concert, and that information obtained from interrogating one detainee has led to the apprehension of others.”

Painter got pushback from other prominent legal ethicists. “It is wrong to say all terrorists should be treated as if they were one client for conflict purposes, “without further inquiry into the relationship in fact between cases,” Professor Stephen Gillers of the New York University School of Law, wrote on the ABA Journal’s Legal Ethics Forum.

Painter is “certainly wrong,” Gillers went on, in concluding “that the Justice Department lawyers may not now have any role whatsoever in terrorism policy or matters at Justice.”

The right argument
This is precisely the kind of argument the nation should be having at this point, Painter said in an interview with MinnPost — not attacks on attorneys who represented detainees. 

But the national debate is at least as much about political attitudes as it is about legal ethics. So I asked Painter to comment on a claim in Kersten’s column. I believe it reflects the view of many American conservatives.

“This reminds me of the dynamic at work in ‘Radical Chic’ — the New York glitterati’s fascination with the Black Panthers in the 1960s — or well-heeled Americans’ 1980s romance with Central American Marxist guerillas,” Kersten wrote. “Many Gitmo lawyers, I suspect, have a naïve and romantic tendency to mythologize the detainees as hapless victims.”

Any tendency to see Guantanamo detainees as victims, Painter said, was fed by “overreaching” at the Bush administration Justice Department, particularly with respect to the so-called “torture memo” in which the department’s Office of Legal Counsel issued guidelines authorizing cruel treatment of detainees.

That “put us into a situation where some detainees might be perceived as the victims even though the vast majority of them are the perpetrators,” Painter said. “But I think the vast majority of the lawyers who filed these cases aren’t mythologizing their clients at all.”

Instead, they are helping courts figure out the proper parameters of U.S. government action.

“If we just leave it to the executive to do whatever they want, you see in the torture memo how far that can go,” Painter said. “This is the reason why these people need to be represented.”

Sharon Schmickle writes about national and foreign affairs and science. She can be reached at sschmickle [at] minnpost [dot] com.