The myth of divided loyalties: defending detainees and the Constitution in the Guantanamo Military Commissions.

• Author: Frakt, David J.R.
• Position: Divided Loyalties: Professional Standards and Military Duty

There has been a widespread view that military defense counsels were not an ideal choice to represent Guantanamo 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.

1. INTRODUCTION II. THE MYTH OF DIVIDED LOYALTIES III. THE MOTIVATIONS OF DEFENSE COUNSEL IV. CONCLUSION I. INTRODUCTION

   A number of critics have suggested that it was inappropriate or unwise for military defense counsel to be assigned to represent detainees accused of terrorist acts and war crimes in military commissions. These critics theorized that military lawyers might not provide the detainees with the most effective and vigorous defense because their loyalties would be divided. After all, the argument goes, how could military officers responsible for defending the United States against terrorist attacks effectively defend those responsible for terrorist attacks against the United States, particularly when their comrades in arms were still fighting and dying in the war on terror? How could military officers zealously defend those who were consistently vilified by the Commander-in-Chief, Secretary of Defense, and other senior military leaders? Would military lawyers risk aggravating their superiors and potentially harming their future career prospects to aggressively advocate for our sworn enemies? While these questions are perhaps natural, they betray a fundamental misunderstanding of the nature of the duties and loyalties of the military defense counsel and reflect a lack of appreciation for the professionalism of the Judge Advocate General's (JAG) Corps. For the past several years, I have attempted through my words and deeds to disabuse people of the notion that military defense lawyers have either a professional or personal conflict of interest in defending detainees before the military commissions, or that divided loyalties or concern about career advancement would cause a military professional to give less than his or her fullest effort. In this essay, I discuss the persistent perception of divided loyalties and explore the performance and attitudes of military defense counsel to demonstrate that this perception is mistaken.

2. THE MYTH OF DIVIDED LOYALTIES

   Both legal scholars and the popular press have raised or perpetuated the notion that military defense counsel might have divided loyalties. As one commentator has written, "officers are required to take an oath 'to support and defend the Constitution of the United States.' In many ways, defending a suspected terrorist who desires to destroy the Constitution and the American way of life seems contrary to this oath." (1) David Luban phrased the possible ethical dilemma for military defense counsel in these terms: "How can a military officer separate the duty of a patriot from that of an advocate?" (2) A variation on this theme was argued by Erwin Chemerinsky:

   From the outset, it has been clear that there is a potential enormous problem with having military lawyers serving as ... defense counsel in representing Guantanamo detainees. Although this is how the military justice system works, the conflict of interest is especially acute when the government so clearly wants the defendants to be convicted. Can those in the military be trusted to zealously represent detainees when they know that their superiors want convictions? (3) Although Dean Chemerinsky acknowledged that at least one military defense counsel, Lieutenant Commander Charles Swift, had been highly effective in representing his client, he argued that the Navy's failure to promote Swift would deter others from being equally zealous:

   The Navy's choice to force out Lt. Comdr. Charles Swift, one of the lawyers who successfully represented Salim Ahmed Hamdan in the Supreme Court, raises serious questions about whether those detained in Guantanamo Bay, Cuba, can receive effective representation by military lawyers. At the very least, it sends a message to other military lawyers representing detainees that aggressive advocacy will be detrimental to their careers. (4) This "chilling effect" theory was widely expressed. A New York Times editorial stated: "The Navy gave no reason for refusing Commander Swift's promotion. But there is no denying the chilling message it sends to remaining military lawyers about the potential consequences of taking their job, and justice, seriously." (5) The Times further suggested that military counsels' fear of negative career repercussions might inhibit their effective representation of detainees: "If [Guantanamo detainees'] military lawyers are afraid to represent them vigorously, their hopes for justice dim even further." (6)

   Contrary to the New York Times' assertion that "there is no denying" the allegedly chilling message sent by the Navy to JAGs, a number of JAGs did deny it. For example, responding directly to the New York Times, the Air Force Deputy JAG wrote, "in claiming that the Navy sent a 'chilling message' to military lawyers by refusing Commander Swift's promotion, you underestimate the fortitude of uniformed attorneys in doing their duty." (7) I also disputed the "chilling effect" theory in a November 2006 response to Erwin Chemerinsky's op-ed. In the article, I explained that the factual premise of Chemerinsky's article was incorrect; passing over Commander Swift for promotion could not have been in retaliation for his victory at the U.S. Supreme Court because the promotion board had made their promotion recommendations before Swift had even argued the case at the high court. I concluded my piece with the following assertion:

   As an Air Force judge advocate, I have volunteered to defend Guantanamo detainees ... If I am selected, I will be every bit as zealous and aggressive as Swift, and I can say the same about every other JAG officer I know. I don't believe for a minute that the decision not to promote Swift ... [is] likely to have a chilling effect on officers who speak out against administration policies in their role as advocates. (8) I would subsequently have the opportunity to back up this claim. In the winter of 2008, I volunteered again for an assignment to the Office of Military Commissions-Defense (OMC), and was selected by the Chief Defense Counsel. From April 2008 until August 2009, I served as lead counsel for two detainees before the military commissions. In that position, I had the opportunity to see firsthand the extraordinary level of commitment, zeal, and skill with which my colleagues carried out their duties.

   President George W. Bush announced his plan to use military tribunals to try alleged terrorists captured in the global War on Terror in November 20019 and the first regulations for such tribunals were issued in March 2002. (10) Yet at the time I joined the Office of the Chief Defense Counsel, six and a half years later, there had been just one military commission completed, the guilty plea of Australian David Hicks in March 2007. Under his plea deal, Hicks received a very light nine-month sentence, which he was permitted to serve in his home country. In fact, Hicks had already been free for four months when I started my tour. (11) This stunning failure of the Bush Administration to successfully prosecute Guantanamo detainees was almost entirely attributable to the tireless efforts of the military counsel assigned to defend them, particularly the defense team for Salim Hamdan, who successfully challenged the constitutionality of the military commissions created by executive order. (12)

   Despite the success of Hamdan's defense team in bringing about the demise of President Bush's original military tribunals, the theory of the conflict of interest of military defense counsel persisted into the next iteration of military commissions under the Military Commissions Act of 2006 (MCA). For example, in June 2008, shortly after the alleged 9/11 co-conspirators were arraigned at Guantanamo, the Editors of the Washington Post wrote:

   The Guantanamo detainees are principally represented by military lawyers, and the commissions are presided over by a military judge. This is not to say that military lawyers and judges can't provide unbiased results, but when defense lawyers and the judge wear the military uniform of the United States, legitimate questions arise about their impartiality. (13) In the few weeks between reporting for my tour of duty at OMC in late April 2008 and the time this editorial was published, I had worked harder than I had ever worked in my life churning out reams of motions, primarily on behalf of my client Mohammed Jawad, one of two detainees captured as juveniles that were then being prosecuted in the military commissions. I used a variety of legal theories including some that were novel to try to prevent his case from going to trial. (14) From my observations, every other defense counsel was equally committed to the zealous representation of their clients. I was offended at the notion that military defense lawyers were part of the problem with the military commissions and quickly wrote a response to the editorial, which the Washington Post was kind enough to publish under the headline: "How We Are Defending the...