Lawyers often represent clients in criminal cases when the odds are long or a catastrophe likely. The facts might be harmful, the evidence overwhelming, or the law clearly on the side of the prosecution. Still, we do the best we can. But what if the system is rigged? What if the system has the trappings of a fair fight but is, in fact, skewed to one side and, by design, the lawyer cannot fully defend the client? What if the lawyer can only lend legitimacy to a process that at its core is biased, slanted in favor of the other side, or fundamentally unfair? Indeed, what if the system is rigged so as to prevent the lawyer from zealously representing the client, or if it compromises the lawyer’s undivided loyalty to the client? Should lawyers refuse to participate in such systems, or should they – should we – still do the best we can?
The Intelligence Reform and Terrorism Prevention Act of 2004 (the “Act”) effected one of the most significant changes since 1947 in the organization of the intelligence community. Title III of the Act reorganized the entire national security clearance system, although the subject received practically no attention in public discussion during the 9/11 Commission hearings. Because this change was not fully explored in either the House or Senate hearings or during floor debate, Title III includes contradictory provisions concerning the assignment of responsibilities for security clearance policies and procedures.
In two cases decided on June 28, 2004, the Supreme Court emphatically upheld the rule of law and the right of those being detained as part of the war on terrorism to have access to the courts. In Rasul v. Bush, the Court held that those being detained in Guantánamo Bay, Cuba are entitled to have a habeas corpus petition heard in federal court. In Hamdi v. Rumsfeld, the Justices declared, by an 8-to-1 margin, that an American citizen apprehended in a foreign country and held as an enemy combatant must be accorded due process, including a meaningful factual hearing on his status.