Lawfare and Legal Ethics in Guantánamo

Abstract:     
This paper, part of a symposium on the legal profession, focuses on the lawyers - some civilian and some military - who represent detainees at Guantánamo Bay. These include civilian counsel representing Guantánamo prisoners in habeas proceedings, as well as civilian and military defense counsel for those facing trial before military commissions. Using published sources as well as interviews with some of the lawyers, the paper examines the tactics by which the U.S. government has tried to disrupt the effective representation of Guantánamo detainees. In the case of habeas lawyers, whose very presence at Guantánamo is unwelcome by the government, these tactics include efforts to sow dislike or mistrust of the lawyers among their clients, efforts to make the lawyers appear powerless in the eyes of their clients, and persistent petty harassments in the mechanics of access. In the case of military commission defense counsel, the government has created conditions of practice that violate long-standing ethical norms of the profession and pit military lawyers' obligations as officers against their obligations as defenders.The conclusion offers two possible explanations of these efforts. One is the "lawfare theory," widely accepted within the Bush Administration, according to which litigation efforts on behalf of those the government has labeled terrorists are really a form of war against the United States, to be responded to in kind. The second is the "torture coverup theory," which speculates that many of these efforts are designed to suppress the emergence of evidence of detainee abuse.

Number of Pages in PDF File: 47

Keywords: military law, national security, legal ethics, legal profession

Accepted Paper Series