The Myth of Divided Loyalties: Defending Detainees and the Constitution in the Guantanamo Military Commissions

Abstract

There has been a widespread view that military defense counsels were not an ideal choice to represent Guantánamo detainees before the military commissions because, among other reasons, their divided loyalties between their client and their country would cause them to be insufficiently zealous. This Article explores the reasons for this perception and argues that this view was mistaken and misguided. In fact, JAG officers assigned to represent detainees were highly motivated, quite vigorous, and indisputably effective in this role because challenging the fundamentally flawed military commissions and the inexcusable treatment of detainees presented no conflict of interest to military counsel dedicated to core American values of due process, humane treatment, justice, and the rule of law. Ironically, it was those JAGs assigned to the prosecution who were more likely to find that the prosecution of detainees in the Military Commissions was incompatible with their oath to defend the Constitution.

Keywords: military commissions, Guantanamo lawyers, Gitmo Bar, JAG, Judge Advocates