Defending tribunals behind enemy line

During my first year at Yale Law, the entire school was abuzz about the War on Terror cases that were then moving up through the federal courts. The first-year “Civil Procedure” courses devoted weeks of class time to issues like whether the president can unilaterally detain people as enemy combatants and whether detainees at Guantanamo Bay can file suits in U.S. courts. The author of the Department of Justice’s briefs in Hamdi v. Rumsfeld and Padilla v. Rumsfeld came to Yale to defend the government’s position in those cases. And the lawyers for Jose Padilla, the so-called “dirty bomber,” practiced their arguments in front of the Law School’s dean and a couple hundred students. Not surprisingly, both students and faculty were overwhelmingly critical of the government’s stance. The prevailing view was that the president was trying to turn Guantanamo Bay into a legal black hole and to subvert the fundamental freedom not to be imprisoned without charge.

I wholeheartedly agreed with this critique. And along with most of the Law School community, I cheered when the Supreme Court announced its decisions in Hamdi, Padilla, and Rasul v. Bush this summer. The Court rebuffed the president’s claims that the government could detain alleged enemy combatants without judicial oversight and that the Guantanamo detainees had no right of access to the courts — thereby reaffirming for us that America is a nation of laws, not men.

The Court’s landmark War on Terror decisions were handed down on June 28. Two days later, to my great surprise, I found myself working on a Guantanamo case — not, as I would have expected, on the detainees’ side, but rather on behalf of the government. I was an intern at the Department of Justice over the summer, where I mostly wrote memos evaluating whether the government should appeal adverse decisions in federal criminal cases. But my office was also involved in War on Terror litigation, and a lawyer that I knew approached me and asked if I wanted to work on a Guantanamo detainee’s multi-pronged challenge to the legitimacy of military tribunals.

After some hesitation, I said yes. My instinct after a year at Yale Law School was to oppose the government’s position in all War on Terror cases, but the opportunity I was being offered — to write the first draft of the government’s constitutional and international law arguments in a case that would likely end up at the Supreme Court — was too good to pass up. So for the next month I researched the history and case law of military tribunals, which the United States has used frequently in wartime to try enemy combatants for violations of the laws of war, and made arguments that did not come naturally to an antiwar liberal. I contended that Congress had implicitly authorized the president to establish the tribunals, that history and precedent supported the tribunals’ use, that the tribunals were consistent with the Geneva Conventions, and that they did not offend constitutional due process and equal protection norms.

Arguing in defense of the military tribunals prompted some deep soul-searching on my part. Did I really want to use my talents to protect a policy that, at least initially, struck me as grievously flawed? Was I making a Faustian bargain, trading my principles for the chance to be involved in a groundbreaking case? I answered these questions in several ways. First, I told myself, a lawyer does not always have the luxury of choosing his clients. When a lawyer represents a client that he finds distasteful, it is perfectly possible for him to separate his personal views from the points he makes as a legal professional. But this argument was undermined by the fact that I had chosen to work on the military tribunal case. I could just as easily have continued writing memos about evidentiary and sentencing issues all summer.

Second, I gradually came to see the military tribunals in a more favorable light as I learned more about them. True, the tribunals afford defendants fewer procedural safeguards than conventional criminal trials, but the defendants still retain important protections such as access to counsel, freedom from self-incrimination, and the right to cross-examine witnesses. And the debacle of the Zacarias Moussaoui trial — where the government tried the alleged “20th hijacker” before a civilian court rather than a military tribunal, only to run into endless national security complications — highlights the difficulties of trying enemy combatants captured abroad in front of garden-variety U.S. courts. But this argument too was undermined by my views about the current administration. Military tribunals may be sensible in the abstract, but how could I trust this president not to abuse them?

In the end, the argument that allowed me to work on the tribunal case without compromising my conscience was this: Regardless of what I chose to do, the government was going to defend the constitutionality of the military tribunals. But it could do so either on very broad or somewhat narrower grounds. And by writing the first draft of the government’s brief myself, I would be able to improve the odds that the narrower — and ethically more defensible — position would prevail. As I drafted the brief, then, I did my best to temper the lawyer’s natural zeal for his side. I did not argue that the tribunals could try anyone for any offense, but rather that they could only try combatants captured in a war zone and accused of offenses against the laws of war. I did not claim that the president has the inherent authority to establish tribunals, but rather that he had been authorized to create them by Congress. I did not assert that the Geneva Conventions were inapplicable, but just that their provisions did not make the tribunals illegal.

I realize that many of the arguments I made were revised in the final version of the brief. But I also know that the positions I took substantially influenced the final product for the better. And that knowledge was enough to allay the misgivings I had about the case, and convince me that I did not make a mistake in agreeing to work on it.



Nicholas Stephanopoulos is a second-year student at Yale Law School. His column appears on alternate Mondays.

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