40 Pages Posted: 5 Feb 2008 Last revised: 14 Apr 2010
Date Written: February 2008
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.
Keywords: legal ethics, human rights, guantanamo, zealous advocacy, military lawyers, JAG
Suggested Citation: 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: https://ssrn.com/abstract=1089481