The Detainees' Dilemma: The Virtues and Vices of Advocacy Strategies in the War on Terror
69 Pages Posted: 5 Sep 2008 Last revised: 22 Sep 2015
Date Written: September 4, 2008
The war on terror's excesses have tested both lawyers and the legal system. However, commentary on that test has not been comprehensive. Commentators have studied the courts' response to the detention and trial of suspected terrorists and the role of government lawyers such as John Yoo who offered advice authorizing government policies. In contrast, most commentators have ignored the war on terror's role as a catalyst for the creativity of human rights lawyers.
The war on terror's restrictions on access to courts have produced innovations among detainee advocates familiar to those who have played the game of "whack-a-mole." Driven by Bush administration measures that made conventional advocacy difficult, lawyers for detainees have developed an alternative approach to lawyering that I call crossover advocacy. For crossover advocates, lawyering advocacy outside of court is often the main event. Crossover advocacy includes work with the media, foreign governments, and international forums, as well as scholarship by academic lawyers working for detainees and damage suits that drive mobilization campaigns independent of judicial outcomes. In the fluid world of "law in action," crossover advocacy has played a more significant role than the elite briefing and argument that inspires Supreme Court opinions.
As in any legal regime trying to tamp down forces that keep reappearing from another direction, crossover effects in the war on terror yield both benefits and risks. Crossover advocates can amplify the voices of detainees and enhance the integrity and transparency of legal regimes in the war on terror. However, advocates are also susceptible to pervasive cognitive flaws such intertemporal and self-serving bias that generate three classes of adverse crossover effects. First, asymmetries in accountability between traditional judicial forums and crossover venues promote reckless advocacy, generate opportunity costs for clients, and encourage an echo chamber dynamic in which preaching to the converted prevails. Second, role conflicts in crossover advocacy undermine deliberation and candor. For example, the legal complaint drafted by lawyers at Yale Law School for a lawsuit against John Yoo may initially prompt the response that turnabout is fair play. However, the complaint's amorphous inconsistency fails as payback for Yoo's infamous legal advice. Crossover advocacy can also produce boomerang and backlash effects that injure the public interest.
Deliberation about the virtues and costs of crossover advocacy requires a mobilization metric. The metric proposed here considers the innocence of the detainee, the fairness of procedures in place, and the gravity of the harm that can befall the client as indicia of a case's mobilization potential. An advocate should weigh that potential against the opportunity costs of crossover advocacy, including the neglect of traditional tactics such as the client's cooperation with the government. The advocate should also consider the prospect that the government will respond to pressure with measures that reduce the lawyer's leverage, such as extraordinary rendition.
The mobilization metric will not vanquish all of the challenges faced by advocates who seek to represent detainees in the face of onerous government restrictions. Nevertheless, working through the metric will correct for cognitive flaws and clarify tactical choices. Resort to the metric will ensure that clients and the public derive the maximum benefit from mobilization strategies.
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