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Military Lawyering at the Edge of the Rule of Law at Guantanamo: Should Lawyers be Permitted to Violate the Law?


Ellen Yaroshefsky


Yeshiva University - Benjamin N. Cardozo School of Law

February 2008

Cardozo Legal Studies Research Paper No. 216
Hofstra Law Review, Forthcoming
NYLS Clinical Research Institute Paper No. 09/10 #18

Abstract:     
Military lawyers at Guantanamo Bay are part of and witness to a legal system decried as the gulag of our times and criticized by courts, legislative bodies, and numerous human rights organizations as defying the concept of a fair system. These military lawyers have knowledge that their government has engaged in acts of torture and other violations of fundamental norms of domestic and international laws. This essay asks when, if ever, it is appropriate for a military lawyer to violate a regulation or law in order to uphold the government's obligations to observe fundamental norms of law.

The essay examines situations faced by three military lawyers in highly publicized cases who exhibited deep-seated concerns that their government was acting contrary to and beyond the bounds of law. These lawyers - Lt. Commander Charles Swift, Major Michael Mori, and Lt. Commander Matthew Diaz - each pushed the limits of zealously advocacy. One of them, Matthew Diaz, was court martialed and found guilty as a consequence of acting according to his conscience. This essay reviews existing civil whistleblower laws and necessity defenses in criminal cases and proposes a safe harbor to permit military lawyers, under a narrow set of circumstances, to take action to prevent the significant harms caused by the government's violation of fundamental norms of international law.

Number of Pages in PDF File: 40

Keywords: legal ethics, human rights, guantanamo, zealous advocacy, military lawyers, JAG

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Date posted: February 5, 2008 ; Last revised: April 14, 2010

Suggested Citation

Yaroshefsky, Ellen, Military Lawyering at the Edge of the Rule of Law at Guantanamo: Should Lawyers be Permitted to Violate the Law? (February 2008). Cardozo Legal Studies Research Paper No. 216; Hofstra Law Review, Forthcoming; NYLS Clinical Research Institute Paper No. 09/10 #18. Available at SSRN: http://ssrn.com/abstract=1089481

Contact Information

Ellen Yaroshefsky (Contact Author)
Yeshiva University - Benjamin N. Cardozo School of Law ( email )
55 Fifth Ave.
New York, NY 10003
United States

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