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?
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.