Flap over Gitmo lawyers overshadows other ethical issues

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.

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.”

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.

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Comments (8)

  1. Submitted by Greg Kapphahn on 03/26/2010 - 08:57 am.

    I am very thankful that we have attorneys with sufficient courage and integrity to represent GITMO detainees in the face of the rage of those who are having a psychological meltdown as the affects of following their ideology are revealed for the damaging and destructive influence on our nation and society that they have clearly been over the last 20+ years.

    I can only hope that this ideology, having no basis in fact or evidence, will fade into oblivion for a time and will, in terms of the old song, become “dust in the wind.” Ms. Kerstine, as it’s equally fact and evidence-challenged mouthpiece deserves the same.

    May the day soon come when, as bad things happen, whether natural or human made, our instinct is to research and resolve the problems which caused or allowed those things to happen rather than, like the most dysfunctional type of family, seek to identify someone to blame then punish them as severely as possible, as much for being the ones we’re blaming as for anything they’ve actually done.

    The former approach is psychologically well adjusted, mature and healthy, moves society toward greater health and wholeness, and does not preclude locking up those who would, by our best judgment, continue to damage and do harm.

    The latter approach inevitably just brings us more of what we think we’re trying to stamp out.

  2. Submitted by Bill Schletzer on 03/26/2010 - 09:33 am.

    To me, these conservatives condemning lawyers doing their constitutional jobs, is another sign that so many conservatives who claim to be patriots and to love our country and its laws really don’t. They would rather live by the Aricles of Confederation rather than the Constitution. So many of them hate the Supreme Court, insult the president because of his color and politics, support wiretapping without legal justification, want to downsize our government to the point where it’s sole function is to start foreign wars that they support and to punish “deviants” and other “outcasts”. If revolution ever comes to this country, it will come from the right, not the left and Kersten and Fox News and their ilk will be the “fellow travellers” to use a McCarthy phrase.

  3. Submitted by Dave Eldred on 03/26/2010 - 11:39 am.

    Mr. Schletzer, you echoed the thoughts that I had as I read this piece. Ms. Kersten and many others cast themselves as patriots, but it is clear by their own words that they want to get rid of the Constitution. The Twin Cities attorneys who represented Gitmo detainees are highly regarded in the legal community and are not naive. Comments such as Ms. Kersten’s call into question not only her motives, but truly, her intelligence as well.

    There is a reason the U of M Law School building is named after Mondale and not Kersten. Happily, it will stay that way.

  4. Submitted by Peter Swanson on 03/26/2010 - 01:34 pm.


    I have said before that I am undecided on how I feel about former lawyers for detainees joining the Justice Department. Is there an argument to be made that the Left has brought this on themselves due to the condemnation of John Yoo, Robert Delahunty, and others for their role in writing legal memos for what you call the “Office of Legal Council” (sic)?

    I know, I know, that’s apples and oranges in your mind. But let’s look at it from a larger perspective. Should we make ad hominem attacks against a person for their legal work? Should we attack the policies we dislike without necessarily attacking the attorneys on one side or the other? Would you have more credibility to defend the so-called Gitmo attorneys if you had defended the Bush OLC attorneys, even if we can make fine distinctions as to how the two cases are different?

    I have read the Yoo, Bybee, and Delahunty memos. I will reserve judgment on the Gitmo attorneys until I know all the facts. Despite all the high-minded quotes from the non-partisan Walter Mondale (you really should pay him a salary for how often MinnPost quotes him), details do matter.

  5. Submitted by Richard Schulze on 03/26/2010 - 09:37 pm.

    John Ashcroft sat before Congress and in no uncertain terms explained why in 2004 lawyers representing detainees could not be named for “national security reasons.”

    Back in 2004, when this issue first arose, it was imperative to conceal their names for the sake of national security. Now, in 2010, it’s imperative to reveal them? This reeks of political partisanship.

  6. Submitted by chuck turchick on 03/29/2010 - 07:54 am.

    Mr. Swanson, the legal work of the OLC lawyers arguably wasn’t legal work at all, but rather was political work disguised as legal work. That is, the legal work was really designed to give free rein to already-made policy decisions. Evidence to suggest this is that the OLC memos were not in the mainstream of legal thinking. Instead of describing accurately what the law was, they were barely on the fringes of legal thinking, which was one reason they were withdrawn. That is highly unusual for OLC opinions. These are hardly ad hominem attacks.

  7. Submitted by Peter Swanson on 03/29/2010 - 12:55 pm.

    Mr. Turchick,

    YOU: “Evidence to suggest this is that the OLC memos were not in the mainstream of legal thinking.”

    ME: That is the fallacy of an appeal to the majority. You are saying that it is true because a lot of people agree with you. I note that you have not criticized a single citation or a single assertion in the memos.

    Even if you think the memos are wrong, you would be in a better position to defend the Gitmo lawyers if you were a little bit more cautious in your criticism of the OLC memos – despite your assertion that these are apples and oranges.

  8. Submitted by chuck turchick on 06/29/2010 - 11:52 am.

    Mr. Swanson,

    Sorry, I didn’t read your reply until now. The “fallacy of an appeal to the majority” has no relevance here. The OLC’s responsibility is not to offer a legal justification for some policy the administration would like to pursue. Rahter, it is supposed to give an objective view of what the current state of the law is. And yes, that means what the majority of legal scholars — or at least the courts — say the law is.

    For some criticisms of mine of the Yoo/Delahunty Geneva Conventions memo, see http://www.tcdailyplanet.net/blog/chuck-turchick/theres-ticking-time-bomb.

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