The Limits of Advocacy: Lawyers for Terrorists/Lawyers for Torturers

Susan N. Herman*

The metaphor that we are at “war” with terrorism has challenged and unsettled many of the dichotomies on which American law has been based: war vs. peace, military vs. criminal justice, domestic vs. international law, and domestic surveillance vs. foreign intelligence collection. It has become increasingly clear that this metaphor also blurs previously accepted ideas about lawyers’ roles. Two recent incidents illustrate the point:

  • In March 2010, Liz Cheney and her “Keep America Safe” group released an ad demanding that the Attorney General release the names of seven Justice Department attorneys who were said to have represented defendants in terrorism cases, suggesting that those lawyers do not share American values and should not be working for the Department of Justice.[2]
  • During oral argument in the case of Holder v. Humanitarian Law Project,[3] Solicitor General Elena Kagan argued that material support laws could properly be used to prosecute lawyers who filed briefs on behalf of groups designated foreign terrorist organizations: “to the extent that a lawyer drafts a brief for the PKK [Kurdish Workers’ Party, of Turkey] or the LTTE [Liberation Tigers of Tamil Eelam, of Sri Lanka] . . . that would be prohibited.”

Cheney’s ad met with a prompt, overwhelming, and virtually unanimous chorus of dismay from lawyers and bar associations, liberal and conservative alike.[4] In contrast, Kagan’s even more alarming remark seems to have passed below the radar of most of those lawyers and bar groups.

These were not the first incidents raising questions about what limits may be imposed on a lawyer representing an alleged terrorist. For example, the 2005 conviction of lawyer Lynne Stewart for enabling her client, Sheik Omar Abdel-Rahman, to communicate with his supporters generated considerable alarm among the defense bar.[5] Is it possible that the Obama Administration would extend the logic of the Stewart prosecution to prosecute a lawyer for performing a purely legal task, like filing an amicus brief on behalf of an alleged terrorist group? Is it possible that Elena Kagan, were she to be confirmed as a Supreme Court Justice, would vote to uphold such a prosecution?

On the other side of the adversary system, criticism has been leveled against government lawyers who advised the Bush Administration on the legal definition of torture, accusing them of distorting statutes, precedents, and international conventions to allow “harsh interrogation techniques” amounting to torture by any reasonable definition of the word. According to a report recently released by the Department of Justice (DOJ),[6] based on an investigation by the Department’s Office of Professional Responsibility (OPR),[7] lawyers John Yoo and Jay Bybee of the Office of Legal Counsel (OLC) had engaged in “professional misconduct by failing to provide ‘thorough, candid, and objective’ analysis” in their memoranda. Unlike the OPR report, the DOJ report declined to refer the findings of misconduct to the state bar disciplinary authorities in the jurisdictions where Bybee and Yoo are admitted to practice. The Obama Administration has resisted holding hearings to fully explore the role of the architects and implementers of torture, including the lawyers.

Some, including former Attorney General Michael Mukasey, have suggested that these two sets of attacks, on defense attorneys and on government lawyers, are “all of a piece.” Mukasey argued that a lawyer in public service has the “obligation to authorize any step or practice the law permits,” just as “[a] lawyer who represents a party in a contested matter has an ethical obligation to make any and all tenable legal arguments that will help that party.”[8] Mukasey’s contention is that the shield of the adversary system immunizes Yoo and Bybee as well as the “Al Qaeda Seven” on the theory that lawyers should not be judged by their clients.

This argument ignores the classic distinction in professional responsibility law between the role of private lawyers and the multi-faceted role of government lawyers, as well as the factual distinction between a lawyer who represents someone who has allegedly done something harmful and a lawyer who personally invites or causes harm, as Lynne Stewart was said to have done by enabling her client to communicate with his supporters. Stewart herself ultimately acknowledged that she might indeed have found herself on the wrong side of that line.[9] Regardless of one’s view of Lynne Stewart’s actions, her case established that there is a line between representation and participation and that defense attorneys may be subject to prosecution for crossing it. The OLC lawyers, unlike defense attorneys who are careful to observe traditional ethical guidelines while representing alleged terrorists, crossed an even more important line. In the words of the OPR report, they were not “represent[ing] a party in a contested matter,” but advising government actors in a context where there was no neutral arbiter to judge whether their advice was “thorough, candid, and objective.” OLC lawyers are expected to play something like the role of arbiter when their advice will unleash conduct rather than merely arguments in court. For their failure to do so in this critically important instance, Yoo and Bybee should be held accountable.

This essay will explore the limits of the lawyer’s role with respect to terrorism and torture on both sides of the adversary system. In the first section, I will discuss how views of the propriety of representing Guantánamo detainees have shifted over the years since 9/11 and some of the reasons for that shift: 1) the leadership of the Supreme Court in bringing the rule of law to Guantánamo, 2) the military lawyers who, from the beginning, had clear conceptions of their own roles and responsibilities whether they were cast as prosecution or defense attorneys, and 3) the increasing number of civilian lawyers who came to champion the role of law and lawyers in the fight against terrorism. Even so, because of the continuing pernicious influence of the metaphor that we are at “war” with terrorism, some of the initial confusion over how that principle applies to anti-terrorism cases lingers.

In the second section, I will discuss how the role of the government lawyer differs from the defense ideal of zealous representation, especially in policy-making rather than litigation contexts. Far from being held liable for their clients’ actions, these government lawyers have been given an immunity that has spread to immunize their clients.

I. How Can You Defend Those People?

As all first-year law students learn, in the American adversary system every criminal defendant has a right to counsel. This right is enshrined in the Sixth Amendment to the United States Constitution[10] and explicated in the Canons of Professional Ethics. Model Rule 1.2b states, “A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”[11] This clear-cut distinction between lawyer and client, no matter how unpopular the client, is an essential aspect of the lawyer’s credo and an answer to the first-year law students who ask how anyone could defend a criminal.[12] The lawyer defends the process, not the crime. The Canons also comment on how lawyers should play their role. Canon 7, which had provided that “[a] lawyer should represent a client zealously within the bounds of law,”[13] has been superseded by more nuanced commentary urging all lawyers to use discretion along with zeal in deciding whether to “press for every advantage that might be realized for a client.”[14]

After 9/11, a panicky America forgot a lot of what it had known and believed about our traditional rights and principles when our leaders admonished us that our principles might stand between us and safety. Due Process was besieged;[15] the right to be free from unreasonable searches and seizures was compromised;[16] even the First Amendment freedom of expression and association was not safe.[17] Attorney General John Ashcroft argued that even to complain about the sacrifice of rights in the name of national security was tantamount to treason. “[T]o those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies.”[18] When the government designated individuals as “enemy combatants” and held them incommunicado at Guantánamo, a zone designed to be free of legal constraints and free of defense attorneys, the idea that an American lawyer might represent a Guantánamo detainee in a legal proceeding shocked many—perhaps seeming even closer to treason than complaining publicly about infringements of rights.[19]

Probably the most important catalyst of the shift in public opinion about the process due “enemy combatants” was the U.S. Supreme Court. The Court considered two habeas corpus petitions, one brought on behalf of a Guantánamo detainee[20] and another brought on behalf of an American citizen, Yaser Hamdi,[21] who was held incommunicado in a military brig in Virginia for 23 months because the administration thought that allowing him to speak to a lawyer would impede the process of interrogating him.[22] The government avoided honoring the Sixth Amendment right to counsel, which applies in “all criminal prosecutions,” by the simple expedient of not bringing a criminal prosecution. Instead, Hamdi was held, on American soil, as an “enemy combatant” who was said to have neither the rights of an accused criminal (such as a trial) or the rights of a prisoner of war (such as a hearing under the Geneva Conventions if there was any question as to his status as a combatant). Because Hamdi was being held incommunicado, he could not consult an attorney about the legality of his detention or sign a habeas corpus petition filed on his behalf. So when the Federal Defender for Eastern Virginia, Frank Dunham, first filed a habeas corpus petition to challenge the legality of Hamdi’s detention, that petition was dismissed on the ironic ground that Dunham had not met Hamdi and so did not have a sufficient relationship with him to represent him as his “next friend.”[23] It was only when Hamdi’s father decided to represent his son’s interests that the court consented to entertain a habeas corpus petition challenging the constitutionality of Hamdi’s detention.[24]

This habeas corpus petition led to a landmark Supreme Court decision announcing that anyone in Hamdi’s position was entitled to some appropriate form of due process before he could be detained any longer. As the case advanced through the courts, Hamdi was finally permitted to talk with the lawyer assigned to represent him, so that his counsel could hear, for the first time, Hamdi’s story. Ultimately, the Court concluded that the government’s untested declaration that Hamdi was an “enemy combatant,” based on hearsay, was not a sufficient basis for holding him in custody for years on end.[25] Put to the test of providing a tribunal with evidence justifying Hamdi’s continued detention, the government instead negotiated an agreement to release him to Saudi Arabia on the condition that he renounce his American citizenship.[26] The Court’s ruling spoke loud and clear: process matters; lawyers matter; and no matter how fearful we may be, our core principles continue to matter.

But the Hamdi ruling did not directly apply to the detainees in Guantánamo. It took several other Supreme Court decisions and rounds of enabling legislation before the rule of law came to Guantánamo in the form of “Combatant Status Review Tribunals,” where the detainees were given some opportunity to contest their continuing detention.[27] Although these proceedings were quite minimal, the detainees were afforded a right to representation at these tribunals.[28]

Military lawyers shouldered the responsibility of providing both prosecution and defense counsel at the Combatant Status Review Tribunals as well at military commissions handling war crimes prosecutions. After President Bush’s November 2001 Executive Order authorized charging non-citizens with war crimes in a military commission,[29] the Department of Defense issued regulations providing counsel for those proceedings.[30] The officer initially assigned to coordinate the defense of the Guantánamo detainees, Colonel Will Gunn, first had to learn to defend himself against attacks on his loyalty. But he calmly announced that he considered representing alleged terrorists to be part of his job description and his patriotic duty.[31] The military lawyers who inherited the job of representing individual Guantánamo detainees in military commission proceedings were no less clear or less zealous in their representation. Commander Charles Swift, for example, said: “f they are calling the commissions (tribunals) military justice, it’s got to live up to what military justice is. It means something. It’s about the law, not what the leaders want.”[32] Some, like Swift and Philip Sundel, evidently paid a heavy personal price for taking their jobs as conscripted defense attorneys seriously, finding their military careers derailed.[33] Even if the Guantánamo detainees were not tried in civilian court, at least they could expect to be represented by military lawyers who believed that their clients, like any criminal defendant, were entitled to a zealous defense.

The military lawyers deserve considerable credit for their clarity all along in recognizing their duty. Individual civilian attorneys—like Frank Dunham and like Donna Newman, who had been assigned to represent Jose Padilla before he was designated an “enemy combatant”[34]—took up the burden of explaining to the public why they believed in what they were doing. Bar associations issued reports on detainees’ due process rights and, along with individual attorneys, participated in litigation over the scope of those rights.[35] The rule of law itself helped to change public opinion about the rule of law, as lawyers defended themselves, their colleagues, and their credo.

In addition to introducing hearings and lawyers to Guantánamo, the chain of events set off by the Supreme Court rulings and responses chipped away at the isolation and secrecy that had surrounded Guantánamo. The Sixth Amendment provides a right to counsel to ensure fair hearings; it also guarantees a right to a public trial for the same reason. Allowing the public to watch trials helps to prevent unfair or abusive proceedings.[36] While geographical and logistical constraints prevented the general public from attending legal proceedings at Guantánamo, invited observers, including reporters and lawyers from human rights and civil liberties groups like the ACLU, began to represent the American people. Many of these representatives reported their observations in speeches, blogs, and books,[37] enabling the public to observe and evaluate the proceedings from a distance. And as the rule of law arrived at Guantánamo, the stigma of representing Guantánamo detainees faded. While in December 2001 it had been difficult for the lawyers at the Center for Constitutional Rights to enlist legal help in representing the detainees, a few years later major law firms were vying to provide lawyers and to boast about their commitment to the rule of law.[38] In some circles, it even began to seem trendy to represent a detainee.

Thus, by 2010, the bar was prepared to answer Liz Cheney’s attack, individually and organizationally. Given time and context, most lawyers had overcome any ambivalence of their own about representing alleged terrorists. The “Department of Jihad” attack on the former defense attorneys, as Patricia Hynes, President of the New York City Bar Association, said, was in essence an attack “on our system of justice, displaying utter contempt for our nation’s most fundamental values and traditions, for our Constitution, and on the rule of law itself.”[39] Senator Lindsey Graham agreed: “This system of justice that we’re so proud of in America requires the unpopular to have an advocate and every time a defense lawyer fights to make the government do their job, that defense lawyer has made us all safer.”[40]

These appeals to abstract operational principles about the adversarial system did not always convince non-lawyers and non-academics. Quite recently, in my role as President of the ACLU, I received a letter from an ACLU member enclosing his membership card and asking to have his name removed from the membership list because he vehemently disagreed with the ACLU’s position that Guantánamo detainees should receive trials in federal court. “As enemy combatants,” he asked, “how can they be afforded the same right as American citizens?”

Lawyers have ready answers to that question. First, the question should be not what rights detainees have, but what principles bind us when we act. Furthermore, declaring someone an “enemy combatant” does not make it so. As New York City Bar Association President Hynes said in her open letter, “‘[a]lleged’ is one of the most important words in the English language; lost in these attacks is the fact that most of those detained at Guantánamo have been released without any finding of their culpability.”[41]

Non-lawyers don’t always grasp the import of the word “alleged.” Many of those who criticize lawyers for representing people alleged to be terrorists assume that those lawyers are representing terrorists. But without a reasonably fair hearing, it is impossible to tell whether someone is an enemy combatant. The catch-22 of the early years in Guantánamo was that the denial of process was not preceded by any process to justify that denial. Even after the Combatant Status Review Tribunals, we have little reason to be confident that all or even most of those detained at Guantánamo were terrorists in any sense of the word. Professor Mark Denbeaux’s exhaustive study of those proceedings concluded that a high percentage of those detained had strong claims that there was insufficient evidence to show that they had any connection to terrorism.[42] Federal judges reviewing habeas corpus petitions from Guantánamo detainees have found that the government did not have sufficient credible evidence to justify continuing detention in 34 out of 46 of the cases they have heard so far.[43] The district court judges reached these results despite their very varied political leanings, and despite the D.C. Circuit Court of Appeals holding that the usual rules of habeas corpus review of criminal convictions do not apply in this context: the standard of review the Court of Appeals selected is not proof beyond a reasonable doubt but a preponderance of the evidence; hearsay evidence is regarded as acceptable if it seems to the court to be sufficiently reliable.[44]

The Department of Justice published a report in March 2009 attempting to evaluate whether detainees released from Guantánamo continued to pose any danger. The DOJ concluded that approximately one in seven of the released Guantánamo detainees engaged in terrorism-related activities or connections after their release.[45] Professor Denbeaux, analyzing the same data, concluded that the percentage of releasees with known connections to terrorism is 2..7 to 5 percent.[46] By either account, the vast majority—86 to 97.5 percent of those released—have not been connected with terrorism after their release.

William Blackstone defended one of the essential features of our criminal justice system, the requirement of proof beyond a reasonable doubt in a criminal case, by positing that it is better to let ten guilty people go free than to risk locking up one innocent.[47] If it is true that a supermajority of the Guantánamo detainees were innocent—or, at least, not shown by any credible evidence to be guilty—Blackstone’s calculus has been stood on its head. Can we, morally as well as legally, justify locking up 90 or even 9 innocent people to avoid freeing one, five, or even ten who might indeed pose a threat? Despite Liz Cheney’s assertions, “lawyers for terrorists” are not representing terrorists. They are defending our process as well as acting on behalf of people who might or might not be terrorists—and in many cases, it seems the detainees were not.

The chief historical poster figure for the American commitment to the right to representation is John Adams, our second President. Adams, as a colonial lawyer, represented clients who were among the most reviled figures of his era: British soldiers charged with participating in the Boston Massacre. Adams was a skillful enough lawyer to persuade a Boston jury to acquit six out of eight soldiers tried and their captain, Thomas Preston.[48] Adams famously wrote in his diary that his defense in this case was “one of the most gallant, generous and disinterested actions of my whole Life, and one of the best Pieces of Service I ever rendered my country.”[49] When the ACLU decided that the government was not providing sufficient resources to ensure Guantánamo detainees confronting military commissions a fair proceeding—despite the courage and zeal of the military lawyers, they were not provided with adequate resources for conducting a defense in a capital case—it named the project it instituted to enhance representation and to expose the inadequacies of the commission system the John Adams Project.[50]

So despite the protestations of critics like Liz Cheney, the role of defense lawyers in our adversarial system is reasonably well settled. Of course, the now widespread agreement on the principle of representation does not answer all questions about whether the usual adversarial process should apply, as shown by the current debates about whether detainees charged with “war crimes” should be tried in civilian court or in military tribunals. But at least we’re having a vigorous and informed public discussion about that issue, in Congress and beyond, airing our differences and trying to come to consensus about what the rules should be going forward.[51] We know that wherever the proceedings take place, there will be lawyers. And lawyers who avoid crossing the line into advocacy of their client’s causes instead of advocacy for their clients, no matter what the forum and what the standard of proof, should not have to fear being branded as promoters of terrorism.


On the subject of torture, the story is very different. We have not made nearly as much progress in our journey to disavow torture as we have in our decision to turn our backs on the early Guantánamo model of detentions without hearings or counsel. President Obama did agree to release the OLC memos, which contributed enormously to our knowledge of the role of the OLC lawyers in this process.[52] But because of the veil of secrecy, there is still much that we do not know about the policy and practices of the American descent into torture and the role of the lawyers who participated,[53] and there are now few voices calling for greater transparency or accountability.

President Obama himself disavowed torture, promising to change the conduct of interrogations held on his watch. On January 22, 2009, he issued Executive Order 13,491, entitled “Ensuring Lawful Interrogations,” which limited the interrogation techniques that may be used by officers, employees, or other agents of the United States Government.[54] But the President has also expressed unwillingness to hold any further investigations or hearings to determine what incidents of torture took place or who might be responsible. “[N]othing will be gained,” he said, “by spending our time and energy laying blame for the past.”[55] Obama has specified that C.I.A. agents who were acting on the Justice Department’s legal advice will not be prosecuted. And it seems that the lawyers who condoned and encouraged torture in their legal memoranda will not be held accountable. Congress has not been clamoring for a full inquiry into the conduct of these lawyers or their clients.[56] The Justice Department has initiated an investigation into the Bush Administration’s torture program, but the investigation apparently focuses only on “rogue” interrogators whose conduct exceeded what was authorized by the lawyers.[57] So although we know that there were more than a few serious abuses, only a few low-level soldiers have thus far been held personally accountable. And the lawyers’ unprofessional advice has become a shield for their clients as well as for themselves.

The current DOJ investigation, although its parameters are not entirely clear, is certainly far too narrow. While the rogue interrogators who did not follow even the permissive rules set for their behavior should indeed be punished, the investigation needs to extend to the lawyers and other senior officials who crafted our policies and authorized torture. We need to create a public record, for historical purposes, of what actually happened; recognize and compensate people who were victims of torture,[58] and provide Congress with enough information to decide whether more restrictive statutes are needed. Most importantly, holding those senior officials who authorized torture accountable is the only way to reduce the likelihood that these abuses will be repeated by future administrations.

Whether Yoo and Bybee violated particular ethical rules has been the subject of considerable discussion.[59] In addition to the more demanding internal principles governing the conduct of OLC lawyers, several Rules of Professional Conduct are involved, like the rule setting forth the duty to offer competent advice[60] and the rule explicating the role of advisor: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.”[61] The latter rule goes on to say that in rendering advice, a lawyer may refer to moral factors that may be relevant to the client’s situation. The Office of Professional Responsibility concluded that Yoo and Bybee had committed professional misconduct, citing the duty to exercise independent professional judgment and to render candid advice, and the duty of thoroughness and care.[62] But in a subsequent memo, although the DOJ concluded that Yoo and Bybee had exercised poor judgment it nevertheless overruled the OPR’s recommendation to refer them for disciplinary sanctions on the ground that they had not violated a clear and unambiguous obligation or standard—tantamount to a finding that they were not shown to have had sufficient mens rea in giving bad advice.[63]

This conclusion does not pay sufficient heed to the differences between the roles of government lawyers, especially OLC lawyers, and defense attorneys. Classic professional responsibility law holds that, while defense attorneys are expected to be zealous advocates, government lawyers, including prosecutors in court, are expected to pursue justice rather than just their clients’ interests or desires.[64] The self-regulations and traditions of the Department of Justice in general and the Office of Legal Counsel in particular put flesh on the notion that government lawyers are expected to do more than simply give their clients the advice they want to hear.[65]

Our expectations of government attorneys are even more important outside the courtroom, where arguments and conduct are not subject to review by judges, juries, or the public. Like defense attorneys submitting zealous arguments to a neutral judge or jury, prosecutors may also offer a wide range of arguments on behalf of their client in a judicial proceeding, although Mukasey’s contention that all lawyers have “an ethical obligation” to present all tenable arguments in their clients’ favor[66] ignores the prosecutor’s superseding obligation to serve justice. There is no check comparable to a judge or jury when policy is being made behind closed doors.[67] As the history surrounding the OLC memos shows, once government lawyers advise their clients that certain conduct is legal and ethical, extreme actions taken by people following that advice can escape review or judgment either by neutral arbiters or by the public. Therefore, the OLC lawyers are expected to play something like the role of arbiter, taking constitutional as well as legal and ethical considerations into account.[68] If they misstate the law and disserve the country in this context, they have failed in their professional responsibility—even if they have not acted in bad faith.

It is easy to understand why there is no chorus demanding accountability for these actions. First, self-interest inclines lawyers to be more willing to defend than attack their legal colleagues, as Mukasey’s bipartisan defense suggests. It is much more appealing to come to the defense of lawyers who are being attacked for doing their jobs than to join an attack on lawyers who may have crossed a line, wittingly or not, while doing their jobs. The fact that these lines are not always clear makes it tempting to defend Bybee and Yoo, just as the defense bar defended Stewart. But if we need to take on the difficult task of drawing lines in order to deter attorneys like Lynne Stewart from enabling their clients rather than just representing them, we also need to decide what lines are appropriate to deter future government lawyers from stretching the law and condoning torture.

The second reason why it seems easy to sweep issues concerning torture under the rug is that the Supreme Court and the federal courts have been so silent in this debate. In our judiciocentric society, it seems to be assumed that if anything unconstitutional or seriously illegal were happening, the courts would weigh in, as they did in the Hamdi and Guantánamo cases. It is enormously significant that the courts have sidelined themselves in this debate, steadfastly refusing to entertain lawsuits challenging the legality of alleged acts of torture. In doing so, the federal courts have resorted to an impressive array of procedural excuses, ranging from immunity doctrines to the state secrets privilege, to avoid reviewing the claims of torture victims. In El-Masri v. United States,[69] for example, the Fourth Circuit dismissed a claim by an extraordinary rendition victim who had been kidnapped, detained, and tortured with the collaboration of American agents, on the basis of the state secrets privilege; the United States Supreme Court deniedcertiorari.[70] On different procedural grounds, the Second Circuit en banc dismissed Maher Arar’s well-documented[71] claim that he was kidnapped, detained for a year in a Syrian jail, and tortured under the aegis of American agents.[72] And in Ashcroft v. Iqbal,[73] the Supreme Court radically renovated pleading standards in order to dismiss a claim of abusive treatment of post 9/11 detainees in an American jail. Persistent procedural evasions have begun to feel like acquiescence in the conduct itself. They lull the public and suggest that, as President Obama has said, we can let bygones be bygones as long as we promise to do better in the future.[74]

A third reason why there is not more momentum for public hearings or discussion on these issues is that the torture story is not one we are anxious to hear or to tell. The tale of John Adams casts our country in a positive light. We admire ourselves for upholding principle despite warnings that honoring a right, like the right to counsel, might be dangerous. There are many heroes in the story of defense attorneys and courts rising to the challenges of Guantánamo and the return to the rule of law. But in the area of torture, the lawyers and the courts were a major part of the problem, permitting, condoning, and trying to bury any deviations from what we had understood to be our principles. If we truly intend to foreswear torture in the future, this is a story that must be told, no matter how painful or embarrassing it turns out to be.

Finally, the ubiquitous and toxic influence of partisan politics has cast its shadow on this issue. President Obama correctly fears Republican complaints that any investigation of torture under the Bush Administration would be playing politics, placing Democrats in the prosecutor’s seat and the minions of a Republican administration in the suspect’s chair. But failing to investigate and potentially prosecute wrongdoers — both the lawyers who condoned illegal acts and the people who committed them — for the purpose of avoiding political backlash is itself an unjustifiably partisan decision.

The key question is whether, despite this heavily rooted reluctance, we can muster the political will to discover and discuss the truth.


As a society, we have learned to expect that defense lawyers will argue for fair treatment of those we detain. That is why there was such unanimity, across political lines, in rejecting Liz Cheney’s reactionary complaints. But can we really expect government lawyers to restrain their clients’ worst instincts in the future if we do not have more discussion and achieve more clarity about where the limits of their advocacy should lie?

We cannot simply turn the page on torture without knowing what happened. This has been a traumatic episode for our country. The American people have been working through an understandable sense of panic that led many to hesitate to object when our government employed indefinite detention, utterly deprived detainees of due process, and denied the assistance of counsel to those it peremptorily designated as enemies. All of these actions were inimical to our traditions and constitutional principles—as inimical as torturing our prisoners.

Centering this discussion in state disciplinary proceedings against the lawyers involved may not be the most useful way to engender this discussion. We may need something like a truth commission to investigate our distressing recent history of rights abuses and, for a start, determine what happened. These commissions are considered most useful where there exists a clear desire for a break with the past and a public need for reconciliation and political legitimacy.[75] In such circumstances, a classic truth commission can serve to 1) contribute to transitional peace by creating an authoritative record of what occurred, 2) provide a platform for the victims to tell their stories and obtain some form of redress, 3) recommend legislative, structural or other changes to avoid a repetition of past abuses, and 4) provide a measure of accountability for those responsible for abuses.[76] The process of coming to terms with the past may itself be what is most important.[77]

In some respects, our experiment with torture may not be wholly conducive to a truth commission approach. Typically, truth commissions have been held precisely because of the tremendous, common impact of violence and human rights abuses on the public. Truth commissions may work best when, as with the South African Truth and Reconciliation Commission, some members of the public must come to terms with what they themselves have suffered and others must come to terms with harm they themselves have caused. Americans do not feel a sense of urgency about torture because it does not seem to be about us, as victims or as perpetrators. The foremost victims of torture—terror suspects—are easy to vilify and dismiss as different from us. And the post 9/11 assault on so many of our fundamental values does not appear to have shaken the prevailing sense that what we do is legitimate, a confidence that has been strengthened with the 2008 regime change. Truth commissions tend to follow a more dramatic regime change than a simple transfer of power from one party to another—like a revolution or severe internal unrest.[78]

Nevertheless, there is much in the truth commission model that could be useful as a means of engaging in a serious process of retrospection. There is at least one promising precedent of a commission model that could work in our present circumstances. In 1975, the Church Committee set out to investigate allegations of abuse of government intelligence authority—including reports that J. Edgar Hoover had improperly spied on American citizens, like Dr. Martin Luther King.[79] The purpose of that committee was to determine “how the fundamental liberties of the people can be maintained in the course of the Government’s effort to protect their security.”[80] The committee’s recommendations led to the creation of the Foreign Intelligence Surveillance Act and Foreign Intelligence Surveillance Court, instituting substantial changes in law governing surveillance itself as well as procedures for the monitoring and oversight of surveillance.

If Congress could summon the political will to investigate torture and torturers, including but not limited to the lawyers, a carefully appointed bipartisan committee could at least create and publish an authoritative record, providing some measure of accountability for those responsible and some platform for victims. Recommendations for changes in policy or law would naturally follow, just as the Church Committee established checks on the National Security Agency upon completion of its report. Prosecution would not be the intended point of a commission—in fact, truth commissions often offer amnesty to individual subjects in order to promote honest testimony.[81] We should be discussing not only whether to initiate a commission process, but also the key question of whether we need to choose between sanctions and truth. Even a short-term spotlight on abuses could take a significant step towards reconciling the ethical missteps of the lawyers and their clients in the past, preventing repetition of abuses during any future crises, and reinforcing the legitimacy of our government and stability of the Constitution.

* Centennial Professor of Law, Brooklyn Law School; President, American Civil Liberties Union. My thanks to Nelson Tebbe and Paul Gangsei for their insightful comments and to Emily Powers for her invaluable research assistance.

[2] To watch the ad, see (Mar. 1, 2010).

[3] 2010 WL 2471055 (Jun. 21, 2010). For the opinion, oral argument transcript, and briefs, see,_Attorney_General_v._Humanitarian_Law_Project..

[4] See, e.g., Liz Cheney ‘Al-Qaeda 7′ Ad Disgusts More Conservatives, Huffington Post, Mar. 8, 2010,; Statement on Justice Department Attorney Representation of Guantánamo Detainees, The Brookings Institution, July 2, 2010., (includes signatories Lee Casey, David Rivkin, Kenneth Starr, Charles Stimson, and Philip Zelikow).

[5] See Convicted Attorney Lynne Stewart: “You Can’t Lock Up All the Lawyers.” Democracy Now, Feb. 11, 2005, Ramsey Clark as saying, “This case would never have been brought except for the fear generated and the advantage that the Bush administration was taking of it by the events on September 11, 2001. In ordinary times and circumstances, it would be recognized that everything that Lynne did was exactly what an effective attorney representing a client zealously would be obligated to do.”). See generally (collection of sources expressing concern about Stewart’s conviction).

[6] U.S. Dep’t of Justice, Office of the Deputy Att’y Gen., Memorandum of Decision Regarding the Objections to the Findings of Professional Misconduct in the Office of Professional Responsibility’s Report of Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence Agency’s Use of “Enhanced Interrogation Techniques” on Suspected Terrorists (2010), available at

[7] U.S. Dep’t of Justice, Dep’t of Prof’l Responsibility, Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence Agency’s Use of “Enhanced Interrogation Techniques” on Suspected Terrorists (2009), available at [hereinafter “OPR Report”].

[8] Michael B. Mukasey, Why You Shouldn’t Judge a Lawyer by His Clients, Wall St. J., Mar. 10, 2010 at A23, available at

[9] Julia Preston, Lawyer in Terror Case Apologizes for Violating Special Prison Rules, N.Y. Times, Sept. 29, 2006, at B1, available at Stewart as saying that her violation of the prison rules and naïvete about the post 9/11 world “permitted [her client, Rahman,] to communicate publicly and [that] these statements if misused [might] have allowed others to further their goals . . . but these goals were not mine.”).

[10] U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.”).

[11] Model Rules of Prof’l Conduct R. 1.2(b) (2002).

[12] See Clarence Darrow, How to Pick a Jury, Esquire (May 1936) (“The lawyer’s idea of justice is a verdict for his client, and really this is the sole end for which he aims.”).


[14] See Model Rules of Prof’l Conduct R. 1.3 Comment 1 (2002) (“A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy on the client’s behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have to exercise professional discretion in determining the means by which a matter should be pursued. . . .”).

[15] See text accompanying notes 20, 21, 32, 35, 38, 40, 53 infra.

[16] See Susan N. Herman, The USA Patriot Act and the Submajoritarian Fourth Amendment, 41 Harv. Civ. Rts.-Civ. Libs. L. Rev. 67 (2006).

[17] See Susan N. Herman, Patriotic Dissent, 45 Washburn L.J. 21 (2005).

[18] A Nation Challenged; Excerpts from Attorney General’s Testimony Before Senate Judiciary Committee, N.Y. Times, Dec. 7, 2001 at B6, available at general’s testimony before senate judiciary committee &st=cse.

[19] Mark P. Denbeaux & Jonathan Hafetz, eds., The Guantánamo Lawyers: Inside a Prison Outside the Law 18-19 (2009) (Michael Ratner, President of the Center for Constitutional Rights, describing the difficulty of enlisting lawyers to represent the Guantánamo detainees in December 2001).

[20] Rasul v. Bush, 542 U.S. 466 (2004).

[21] Hamdi v. Rumsfeld, 548 U.S. 557 (2006).

[22] See Neil A. Lewis, Sudden Shift on Detainee, N.Y. Times, Dec. 4 2003, at A1, available at (Hamdi was first sent to a military brig in January 2002 and was not permitted to see counsel until December 2003).

[23] Hamdi v. Rumsfeld, 294 F.3d 598, 600 (4th Cir. 2002), rev’d, 542 U.S. 507 (2004).

[24] Hamdi v. Rumsfeld, 296 F.3d 278, 279 (4th Cir. 2002).

[25] 542 U.S. 507, 532-535 (2004).

[26] Eric Lichtblau, U.S., Bowing to Court, to Free ‘Enemy Combatant’, N.Y. Times, Sept. 23, 2004, at A1, available at

[27] Detainee Treatment Act of 2005, Pub. L. No. 109-148, Div. A, Tit. X, 119 Stat. 2739.

[28] U.S. Dep’t of Def., Office of Deputy Sec’y of Def., Memorandum for the Secretary of the Navy: Order Establishing Combatant Status Review Tribunal (2004), available at

[29] Military Order of November 13, 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,831 §4(c) (Nov. 13, 2001), available at

[30] [30] See id.; see alsoU.S. Dep’t of Def., Military Commission Order No. 1: Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism (2002), available at .

[31] See Jeffrey Toobin, Annals of Law: Inside the Wire, The New Yorker, Feb. 9, 2004, available at – ixzz0jlLueWg2.

[32] Paul Shukovsky, Gitmo Win Likely Cost Navy Lawyer His career, Seattle P-I, Jul. 1, 2006, at A1,available at; see also Marie Brenner, Taking on Guantánamo, Vanity Fair (Mar. 2007), available at (“[O]nly in this country can a military officer take a disagreement with presidential power to court as a way of settling. Everywhere else they call that a coup.”); Toobin, supra note 32 (quoting Michael Mori as saying ““It’s a noble thing to stand up for someone who might have no one else in the world to stand up for him.”).

[33] See Carol Rosenberg, Gitmo Defense Whiz Forced Out: Navy Lawyer Passed Over, Must Retire, Seattle Times, Oct. 8, 2006, at A7, available at; see also Neil A. Lewis, U.S. Terrorism Tribunals Set to Begin Work, N.Y. Times, Aug. 22, 2004, at 122, available at (“Asked if he believed the promotion denial was related to his representation of Ali Hamza Ahmed Sulayman al-Bahlul of Yemen and his strong criticism of the tribunal system, [Sundel] said: “I have no way of knowing if it adversely impacted my situation. It didn’t positively impact, it seems.”), Shukovsky, supra note 33 (“Swift thinks his military career is coming to an end. The 44-year-old Judge Advocate General officer, who was recently named one of the 100 most influential lawyers in the country by The National Law Journal, was passed over for promotion last year as the high-profile case was making headlines around the world.”).

The Rules of Professional Conduct prohibit lawyers from representing a client if their representation involves a concurrent conflict of interest, such as a personal interest of the lawyer. Model Rules of Prof’l Conduct R. 1.7(a)(2) (2002). Swift and Sundel seem to have decided to resolve their own potential conflicts by deciding to subordinate or ignore their self-interest in their military careers.

[34] Padilla had initially been detained as a material witness pursuant to 18 U.S.C. 3144 (2006) and as such was entitled to assignment of counsel, see Release or Detention of a Defendant Pending Trial, 18 U.S.C. §3142(i)(1-3) (2006).

[35] A.B.A., Task Force on Treatment of Enemy Combatants, Preliminary Report (2002),; A.B.A., House of Delegates Recommendation (2002),; Committee on Military Affairs and Justice, N.Y.C.B.A., Inter Arma Silent Leges: In Times of Armed Conflict Should the Laws be Silent?, A Report on the President’s Military Order of November 13, 2001, Regarding “Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism,”57(1-2) Record of The N.Y.C.B.A. 39 (2001), available at Vol. 57, Nos. 1-2, Winter-Spring 2002.pdf.

[36] See Susan N. Herman, The Right to a Speedy and Public Trial 3-30 (2006) (on the history and functions of the right to public trial).

[37] See American Civil Liberties Union, Dispatches from Guantánamo (Nov. 9, 2004),; Public Statement, Amnesty International, Guantánamo: Military Commissions – Amnesty International Observer’s Notes from Proceedings (Nov. 3, 2004) (on file with Amnesty International), available at; see generally Human Rights First, Military Commission Trial Observation, blog updates from trial observers); James Hicks, On Trial in Guantánamo, Human Rights Watch News, Nov. 28, 2004, available at

[38] Denbeaux & Hafetz, supra note 20, at 413-20 (listing lawyers, including law firm partners and associates from prestigious law firms in various cities, who contributed accounts of their experiences deciding to represent and then representing Guantánamo detainees); id. at 7-27 (lawyers’ explanations of why they got involved); id. at 22 (an account of the impact of having an Admiral, John Hutson, combine with a “civilian attorney from a highfalutin Chicago law firm” to advocate for representing the interests of Guantánamo detainees).

[39] Patricia Hynes, Defending Our System, One Client at a Time (Apr. 2010),

[40] Id.

[41] Id.

[42] Mark Denbeaux, et al. Report of Guantánamo Detainees: A Profile of 517 Detainees through Analysis of Department of Defense Data, Feb. 8, 2006, at 2, available at (citing 86% of detainees as having been turned over to U.S. by Pakistan or Northern Alliance in Afghanistan, at least some of whom were notoriously unreliable bounty hunters; 10% as shown to be Al Qaeda fighters; 40% as having had no connection with Al Qaeda at all; and 55% not considered to have committed any hostile acts towards the United States or coalition allies); see also Joel Brinkley and Eric Lichtblau, U.S. Releases Saudi-American it Had Captured in Afghanistan, N.Y. Times, Oct. 12, 2004, at A1, available at Yaser Hamdi had been sold by the Northern Alliance for $20,000).

[43] Charlie Savage, Obama Team Split on Tactics to Use Against Terrorism, N.Y. Times, Mar. 29, 2010, at A1, available at

[44] Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010).

[45] Of a pool numbered at 530 releasees, the DOJ counted 27 as “confirmed” and 47 as “suspected” of “returning” to terrorism. U.S. Dep’t of Def., Fact Sheet: Former Guantánamo Detainee Terrorism Trends (2009), available at

[46] Denbeaux found that the pool was actually 553 and that only 13-15 terrorism connections could be “confirmed” (finding even some of those confirmations dubious). Mark Denbeaux, et al., Revisionist Recidivism: an Analysis of the Government’s Representations of Alleged Recidivism of the Guantánamo Detainees, Jun. 5, 2009, at 8, available at; see also Security Experts Skeptical on Gitmo Detainee Report,, Jan. 24, 2009,available at (putting the figure of releases engaged in terrorism at four percent).

[47] 4 William Blackstone, Commentaries *358.

[48] Hiller B. Zobel, The Boston Massacre 265, 294 (W.W. Norton & Co., Inc. 1971) (1996).

[49] John Adams, II Diary and Autobiography of John Adams 79 (L.H. Butterfield, ed.) (1962).

[50] See John Adams Project – American Values,

[51] See Savage, supra note 44.

[52] Mark Mazzetti & Scott Shane, Interrogation Memos Detail Harsh Tactics by the C.I.A., N.Y. Times, Apr. 17, 2009, available at (on the release of the OLC memos).

[53] Partly due to the ACLU’s Freedom of Information Act litigation, we now do have a number of central documents revealing what various government lawyers said about what conduct would count as torture and what interrogation techniques would be permissible. See id.; see Jameel Jaffer & Amrit Singh, The Administration of Torture (2007).

[54] Exec. Order No. 13,491, 74(16) Fed. Reg. 4,893 (Jan. 27, 2009), available at

[55] Mazzetti & Shane, supra note 54.

[56] There are exceptions, including Senator Patrick Leahy, see id.

[57] Eric Holder, Attorney General, Speech Regarding a Preliminary Review into the Interrogation of Certain Detainees (Aug. 24, 2009), available at

[58] Victims of torture and extraordinary rendition have had virtually no success in the courts. See text accompanying notes 71-76 infra.

[59] See, e.g., Marc Ambinder, ”Poor Judgment” — Yoo, Bybee And The Torture Memos, The Atlantic (Feb. 19, 2010), available at; Eric Lichtblau & Scott Shane, Report Faults 2 Authors of Bush Terror Memos, N.Y. Times (Feb. 19, 2010), available at; 2010; DOJ report on torture memos is finally out,

[60] Model Rules of Prof’l Conduct R. 1.1 (2002) (defining competent representation as requiring the “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”).

[61] Model Rules of Prof’l Conduct R. 2.1 (2002) (emphasis added).

[62] See OPR Report, supra note 8, at 19-23, 260.

[63] DOJ Report, supra note 7, at 68.

[64] See Model Code of Prof’l Responsibility EC 7-13 (1983) (“The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict.”); see also Model Rules of Prof’l Conduct R. 3.8 Comment 1 (2002).

[65] Supplemental Standards of Ethical Conduct for Employees of the Department of Justice, 5 C.F.R. § 3801 (2009); U.S. Dep’t of Justice, Employee Responsibilities, 28 C.F.R. § 45 (2009); Standards of Ethical Conduct for Employees of the Executive Branch, 5 C.F.R. § 2635 (2009); see generally U.S. Dep’t of Justice, Office of Prof’l Responsibility, (with general information and links to annual ethics reports).

[66] See text accompanying note 9 supra.

[67] See Stephen Gillers, Moral Choice in Lawyering, N.Y. Times: Room for Debate Blog (Mar. 9, 2010)

[68] See United States Department of Justice, Office of Legal Counsel,

[69] El-Masri v. United States, 479 F.3d 296 (4th Cir.), cert. denied, 552 U.S. 947 (2007).

[70] Id.

[71] The Canadian government issued a formal apology to Arar for its role in his mistreatment, and offered him damages in the amount of $10.5 million. See Harper’s Apology “Means The World”: Arar, Broadcast News, Jan. 26, 2007, available at

[72] Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (en banc), cert. denied, 130 S. Ct. ___ (Jun. 14, 2010) See also Ali v. Rumsfeld, No. 05-1378 (D.C. Cir. Mar. 27, 2007), reh. en banc denied, No. 07-5178, WL 1630211 (D.C. Cir. Mar. 26, 2010) (torture complaint dismissed by D.C. District Court finding defendant Rumsfeld immune).

[73] Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).

[74] The courts still have an opportunity to end their long and portentous silence on this issue. Despite the Obama administration’s argument in another extraordinary rendition case, a panel of the Ninth Circuit refused to dismiss the complaint on the basis of the state secrets privilege. Mohamed v. Jeppeson Dataplan, 586 F.3d 1108 (9th Cir. 2009), reh. en banc granted, 586 F.3d 1108 (9th Cir. 2009).

[75] See Priscilla B. Hayner, Fifteen Truth Commissions –1974 to 1994: A Comparative Study, 16 HUM RTS Q. 597, 604 (1994).

[76] Margaret L. Popkin & Naomi Roht-Arriaza, Truth as Justice: Investigatory Commissions in Latin America, 20 LAW & SOC. INQUIRY 79, 79 (1995); see generally Latest Resources and Tools, United States Institute of Peace,**ALL**&filter0=**ALL**&filter2=2222&filter3=**ALL**&filter4= (a study of 41 truth commissions); (listing sources).

[77] Popkin & Roht-Arriaza, supra note 78, at 114.

[78] Hayner, supra note 77, at 604.

[79] Intelligence Activities and the Rights of Americans, Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, Book II, p. 299, S. Rep. No. 94-755, 94th Cong., 2d Sess. (1976), available at (transcription).

[80] Id.

[81] Truth commissions are generally non-prosecutorial, see Hayner, supra note 77, at 604.

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