Defending the Rule of Law: Reconceptualizing Guantánamo Habeas Attorneys
Laurel E. Fletcher
University of California, Berkeley - School of Law
February 15, 2012
Connecticut Law Review, Vol. 44, No. 3, 2012
UC Berkeley Public Law Research Paper No. 2022820
An explosive video released in spring 2010, by Elizabeth Cheney, accused the Obama Administration of hiring “terrorist” lawyers to guide national security. The so-called “al Qaeda Seven” had represented or advocated for the rights of Guantánamo detainees before joining the Administration. The ensuing debate raised important questions about the relation of lawyers to politics in times of threats to national security. Do and should lawyers share the values of their clients? Should lawyers be guided by a normative vision for the legal profession? In other words, what consideration, if any, should lawyers pay to the larger social values implicated in their work?
This article explores these questions by examining two dominant conceptions of lawyers deployed by critics and supporters of Guantánamo lawyers: cause lawyers and neutral partisan lawyers. This article argues that neither model adequately explains the motivations and behaviors of Guantánamo habeas lawyers during the period between the Supreme Court decisions in Rasul and Boumediene. This article advances a third conception of lawyers as “rule of law lawyers” to explain the emergence of a “Guantánamo bar” to represent detainees in habeas proceedings. This model identifies that, under certain conditions, lawyers will work to defend basic freedoms and other procedural and structural guarantees of political liberalism. The article analyzes Guantánamo habeas attorneys as an example of rule of law lawyering. It examines the self-described motivations of these lawyers to take up this work. It also looks to several objective factors — the recruitment and composition of the Guantánamo bar; the legal goals pursued by these lawyers; their relationship to civil society; and the relationship of Guantánamo habeas attorneys to the organized bar — that support the argument that Guantánamo habeas attorneys fit the paradigm of rule of law lawyers. Finally, this article explores some important implications for legal practice and theory presented by this new conception of Guantánamo habeas attorneys.
Number of Pages in PDF File: 57
Date posted: March 15, 2012