Going Native at Guantanamo: When Government Lawyers Lose Their Way Commentary
Going Native at Guantanamo: When Government Lawyers Lose Their Way
Edited by: Jeremiah Lee

JURIST Guest Columnist Victor Hansen of New England School of Law says that the development of US detainee policy at Guantanamo demonstrates what can happen when government lawyers forget that their duty is not to a governmental official or a political party, but rather to their departments and the Constitution and people of the United States…

Earlier this year information from former US Navy General Counsel Alberto Mora revealed to the general public for the first time the degree of concern and disagreement that some lawyers within the US Department of Defense have had with the Administration’s policy on the treatment of detainees at Guantanamo. In an internal memo released in February, Mora detailed his concerns about many of the interrogation techniques the Department had approved. The memo also set out Mora’s efforts to reverse what he viewed as a seriously flawed legal analysis of an extremely important and sensitive issue.

Mora’s efforts to get the Secretary of Defense to reconsider his position on the proper treatment of the Guantanamo detainees highlight one of the most basic and difficult challenges of any organizational lawyer, loyalty to the organization as the client versus loyalty to the organization’s head. Mora’s memo also reveals the harm that often results when organization lawyers loose sight of who their client is.

Every service member and most elected and appointed public officials take an oath of office when they begin their service. The oath of office includes a pledge to support and defend the Constitution of the United States. It is significant and not by accident that the oath is to the Constitution, not to a specific person or political party. There is a long tradition in military and public service to support the rule of law and to place one’s duty to the rule of law above loyalty or allegiance to a specific person or political view. The obligation that a government lawyer has to the organization is no different. Lawyers within the Department of Defense and the Department of Justice do not represent the department head or the President. They represent the organization and the larger public interests. This ethical obligation is clearly set out in the ABA Model Rules of Professional Responsibility under rule 1.13.

When the lawyer’s focus is more on advocating and enabling the department head’s views than what is in the best interests of the organization the consequences can be disastrous. The Mora memo and other recently released documents show that at the most critical junctures in the development of US Guantanamo policy, key US government lawyers lost their objectivity and as a result, provided flawed and inaccurate legal analysis that has resulted in tragic consequences to the Army and the Department of Defense. More importantly, the analysis has put individual soldiers at risk and has undermined our moral authority to effectively wage the war on terror.

Legal opinions both within the Department of Defense and the US Department of Justice concluded that using stress positions for several hours, removing a detainee’s clothing, using detainees phobias such as the fear of dogs to induce stress, the use of scenarios designed to convince the detainee that death is imminent to him or his family, exposure to cold water, and inducing the misperception of suffocation, and other aggressive interrogation techniques do not raise to the level of torture. These opinions were given in spite of the fact that 18 U.S.C. § 2340A(2)(C)&(D) defines torture to include severe mental pain or suffering such as “the threat of imminent death; or the threat that another person will imminently be subjected to death.” Common Article 3 of the four Geneva Conventions and other customary international laws also prohibit torture.

As Mora’s memo shows, the legal opinions – particularly those authored by the Office of Legal Counsel within the Department of Justice – justified the departure from established laws preventing torture by adopting erroneous legal analysis. The justifications for the use of harsh interrogation techniques were compelling government interests, that the President’s authority in time of war is virtually limitless, that the detainees at Guantanamo have no recognized legal status, and that as long as there is no specific intent to cause prolonged harm, the techniques are legal.

The most troubling revelation, however, is that lawyers within the Department of Defense and the Office of Legal Counsel were not only aware that key decision makers were pushing for illegal interrogation techniques, but through their legal opinions and bureaucratic maneuvering these lawyers assisted and enabled the decision makers to authorize torture. Sadly those lawyers with the greatest knowledge and expertise on issues relating to the law of war were purposely sidelined. In their stead, lawyers who were willing to tell the Administration what they wanted to hear were given the task of writing the legal opinions that the White House and the Department of Defense used to justify their treatment of the detainees at Guantanamo. These memos were of course later withdrawn after detainee abuses throughout the Department of Defense came to light.

Absent from any of these erroneous legal opinions is any serious analysis as to the impact that the use of these aggressive interrogation techniques will have on the real client. There is no discussion of the possible risks interrogators who use these techniques could face, to include criminal prosecution and harsh treatment at the hands of their enemies. There is no consideration in these legal opinions of how the use of these interrogation techniques will impact the United State’s standing among its coalition partners our allies or the world at large. The legal opinions are silent as to the effectiveness of these interrogation techniques in actually obtaining useful intelligence. Yet these are the very considerations that an organizational lawyer should consider and advise on in order to fully and completely represent the best interests of the client.

How did these lawyers get it so wrong and provide such poor legal advice? The answer comes back to the very simple point that these lawyers lost sight of who the client is and what is in the best interests of the client. The corporate scandals of the past several years are replete with examples of lawyers who have failed to fulfill their ethical and legal responsibilities to the organizations they represent. Unfortunately, as we are now seeing, when government lawyers fail their clients in matters vital to our national security, the consequences can be severe. Much of this may have been avoided if some of those lawyers would have simply asked the fundamental and most basic questions. Who is my client? What actions are in my client’s best interests?

For those who would claim that these questions are too basic, or that this is too simplistic of an approach in the extremely complex arena of national security, I suggest that they look to the example of Alberto Mora. He clearly did not forget who his client was. We are all better for that.

Victor Hansen was a lieutenant colonel in the United States Army JAG Corps and currently teaches at New England School of Law

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