If, as de Tocqueville observed, everything in America eventually becomes the province of lawyers, it should not be surprising that the conduct of lawyers has become a salient aspect of the war on terror. While terrorists typically express contempt for the rule of law, lawyers in a democracy should know better. Unfortunately, crises sometimes push lawyers from their traditional roles as advocates and counselors into less auspicious roles as enablers of overreaching. The legal response to the attacks of September 11 has highlighted the ethical pressures imposed on lawyers in crisis situations. The contributors to this symposium focus on two important subjects: (1) the ethical issues triggered by the recommendations of government lawyers on treatment of detainees (the so-called “torture memos”), and (2) the debate over the ethics of the government’s placement of restrictions on civilian defense lawyers representing alleged terrorists in government-dominated fora such as military commissions. The torture memos represent a conflict between the lawyer’s role as advocate for a client’s position and the attorney’s role as advisor offering an accurate account of the law as it exists. Symposium contributors argue that lawyers in the Office of Legal Counsel of the Department of Justice are advisors charged with the latter role. They argue further that these attorneys failed in that obligation.
In the fall of 2001, the Bush administration was looking for a place to imprison and interrogate alleged al Qaeda members away from the prying eyes of other countries and insulated from the supervision of United States courts. The Defense Department believed that the Naval Base at Guantánamo Bay, Cuba might work, so it asked the Justice Department’s Office of Legal Counsel (OLC) whether federal courts would entertain habeas corpus petitions filed by prisoners at Guantánamo, or whether they would dismiss such petitions as beyond their jurisdiction. On December 28, 2001, OLC responded with a thorough and balanced analysis of how the federal courts were likely to resolve the jurisdictional question. The memorandum prepared by OLC explained the arguments against such jurisdiction, but it also explored possible strengths in the opposing position. The memorandum predicted that federal courts would not exercise jurisdiction but explained the risk of a contrary ruling. Acting in reliance on this memorandum, the government started imprisoning and interrogating alleged al Qaeda members at Guantánamo the following month, cognizant of the risk that a federal court might find habeas jurisdiction.
Humberto Alvarez-Machain, a Mexican national, was kidnapped in Mexico and brought to the United States at the behest of US Drug Enforcement Administration (DEA) agents for allegedly assisting in the torture and murder of a DEA agent in Mexico. He challenged the jurisdiction of US courts to try him, arguing that his illegal seizure barred the trial. The Supreme Court rejected that contention, holding that “the power of a court to try a person for a crime is not impaired by the fact that he has been brought within the court’s jurisdiction by reason of a ‘forcible abduction.’” This writer was one of the few who supported the Supreme Court’s decision sustaining jurisdiction, arguing that it was consistent both with international law and with the Fourth Amendment.