The Washington Post reported today that the U.S. government has notified Khalid Sheikh Mohammed and the other "high value detainees" -- who were transferred in September 2006 to Guantanamo from secret CIA prisons-- of their right to contact and get assistance from the Red Cross and outside lawyers.
Before I go further, I want to say explicitly that I reject wholeheartedly the sentiments of former Pentagon official Charles "Cully" Stimson and others, who have harshly criticized American law firms for representing pro bono Guantanamo detainees and suggested that corporate clients stop doing business with such firms. By bringing their top-flight legal talent and substantial resources to bear on behalf of unpopular causes and individuals, major American law firms have, for decades, brought honor to themselves and the legal profession, and justice to many who otherwise who have been unjustly executed, imprisoned, abused, discriminated against, or otherwise mistreated.
Khalid Sheikh Mohammed presents an interesting and perhaps novel case. It seems quite different to represent him pro bono than to represent some of the anonymous crowd at Guantanamo. Even the U.S. government concedes that many held at Guantanamo don't belong there. Tragically, many may well be be innocents who were kidnapped in or near Afghanistan by warlords and, under false pretenses, sold to American forces in exchange for the bounties we offered for al Qaeda members.
By contrast, KSM is the real thing. There appears to be no dissent from the U.S. government's view that KSM was the key planner for 9/11 (nearly 3000 dead). KSM has proudly affirmed his role. KSM apparently supplied knowledge and/or funds for the first World Trade Center attack (6 killed), the bombing of the U.S.S. Cole in Yemen (17 sailors dead), and helped plan in 1994 the foiled "Bojinka" plot to simultaneously blow up 12 U.S. commercial airplanes over the Pacific Ocean. He is said to have murdered the Wall Street Journal reported Daniel Pearl (whether or not that is true, his desire to claim credit for killing "the American Jew" says a lot about what kind of man he is). KSM recently admitted at a hearing at Guantanamo that he was involved in a large number of other large-scale terror plots which never came to fruition, including assassinations of American presidents, attacks on Israeli government buildings, and bombings of American landmark buidlings. He has described himself as "the Military Operational Commander for all foreign for all foreign operations around the world under the direction of Sheikh Usama Bin Laden and Dr. Ayman Al-Zawahiri."
Here is the 9/11 Commission's summary of KSM's activities. The transcript of KSM's March 2007 CSRT hearing at Guantanamo is available here.
This isn't Sacco and Vanzetti, the Scottsboro Boys, a sad sack on death row somewhere who had a drunk fool for a lawyer, or the small time guys and wrong-place-at-wrong-time mistakes still languising at Guantanamo. Mohammed is a mass murderer of massive scale; a man with shockingly repugant religious and political beliefs which he translated repeatedly into the murder of thousands of innocent civilians. If the anonymity created by the sheer numbers of the 9/11 dead makes it difficult for anyone to understand and personalize the utter evil that KSM represents, recall that Daniel Pearl was forced to choke out "I am a Jew, my mother is a Jew . . . ." before his head was cut off with a butcher's knife.
What am I getting at? I will watch with great interest to see who steps forward to represent Mohammed. I am not condemning that person or entity in advance. But I am suggesting, likely in an inarticulate way which will draw criticism, that KSM crossed lines which make him a very different kind of potential pro bono client than perhaps any other ever represented by a major American law firm or legal services organization. I hope whoever decides to represent KSM will make a public statement describing the reasons for doing so. I would welcome a good public discussion of the difficult moral, professional, political and other issues raised by deciding whether to provide free legal services to such a man.
In Rasul, the Supreme Court determined that detainees who claimed to be innocent civilians were entitled to some sort of process to determine their status before a neutral tribunal. This was not, however, a statement that detainees who admit their enemy combatant status were entitled to legal process or representation absent a formal charge. Once charged with a crime and tried before a military commission, the accused is then entitled to representation on that matter.
This exposes an interesting question about professional legal ethics that is not normally considered. A criminal suspect, even one who admits to the crime, is legally innocent until proven guilty in a court of law. The process is obligatory and cannot be waived (even a guility plea is process), and his lawyer is obligated to provide the best defense even if he knows his client is guilty. If a defense lawyer gets a guilty client off, he is doing his job.
However, if a lawyer represents a detainee who in confidence admits to his combatant status, the normal criminal rules don't necessarily apply. A POW is not entitled to any legal process, and the government has no obligation to prove anything about a POW before detaining him. Someone claiming to be a civilian who is being held as a POW may have legal rights, but once a lawyer knows his client to have no good faith claim to civilian status, he has no logical basis to claim a profession right, let alone a responsibility, to contest the combatant status of a client he knows to be a combatant. He may, however, bypass the CSRT status question and contest other legal questions, while recognizing that the Supreme Court has not ruled that there are any other legal questions that may be raised.
KSM has admitted his combatant status. He is entitled to a defense like any other criminal suspect should he be charged before a military commission (we all expect this will happen, but since it has not happened yet we must qualify this as speculation). This creates an interesting professional mine field for anyone bold enough to attempt to represent KSM prior to the filing of actual charges. At this particular moment in time, KSM may have no right of representation and anyone attempting to represent him ought not to assume that he can be treated just like any criminal suspect. In particular, the usual standards of "duty to the client" run dangerously close to "giving aid and comfort to the enemy" (and I mean that objectively and literally, not in some rhetorical or ideological sense). About the worst thing that could happen is for a lawyer who knows in confidence that his client is a combatant contesting the CSRT anyway, gaining his release, and then the client returns to the battlefield and kills someone. Because he persued a legal claim he knew was fradulent, the lawyer could be guilty of Treason and murder simply for representing "the best interest" of the client. This is not a domestic criminal case, and relying on the usual ABA rules for domestic legal matters may not be an adequate defense.
Or maybe not. The purpose of this post is really to ask a question and get some people thinking about a problem that I think everyone simply overlooks and assumes doesn't exist.
Posted by: Howard Gilbert | September 28, 2007 at 12:43 PM
Discussing the relative merits of a defendant's case, in the context of whether a lawyer should aid in the defense, misses the point. Everyone in our criminal justice system is entitled to a fair defense which includes adequate counsel. Those rights are not reserved for the innocent, or arguably innocent, or only incidentally guilty. Indeed, the point is that the manifestly guilty have a heightened need for those rights as the public opprobrium visited on criminal defendants generally is especially intense for notorious defendants.
If KSM did the things the government accuses him of doing, then justice for him will almost certainly be very terrible and rightfully so. But the end of justice oughtn't be polluted by a corrupted means. Adequate counsel in this case, given the opposition arrayed against the defendant, should mean the very best lawyer who is willing to do the work.
In my estimation, the lawyers who take on KSM's defense don't deserve less moral credit, they deserve more. They are fulfilling the highest obligations of the bar while incurring the powerful disfavor of much of the public. If they were to provide those services pro bono, at the opportunity cost one imagines of serving other paying clients, that only increases the measure of their sacrifice in the performance of their duty.
(I should add that whether KSM's many confessions can be trusted, given his apparently harsh treatment, including whether his confession to murdering Daniel Pearl is true, remain an open question. A recent New Yorker article on KSM cast doubt on the subject. I don't know what the truth is. I am skeptical of the government's claims that the truth must be kept secret, or that secret truth, in a criminal case, is ever adequate. All of that counts, again, in favor of zealous and skilled counsel of the highest order.)
Posted by: CullenS | September 28, 2007 at 04:00 PM
I wonder what John Adams, the lawyer who represented the British soldiers accused of murdering the Boston Massacre in 1770, would think of this debate.
It's not obvious, but it's worth pondering.
Here is what some report to be his diary entry from the time (which I cut and pasted from "wikipedia"):
March 5, 1773:
(The third anniversary of the Boston Massacre)
"I. . .devoted myself to endless labour and Anxiety if not to infamy and death, and that for nothing, except, what indeed was and ought to be all in all, sense of duty. In the Evening I expressed to Mrs. Adams all my Apprehensions: That excellent Lady, who has always encouraged me, burst into a flood of Tears, but said she was very sensible of all the Danger to her and to our Children as well as to me, but she thought I had done as I ought, she was very willing to share in all that was to come and place her trust in Providence.
"Before or after the Tryal, Preston sent me ten Guineas and at the Tryal of the Soldiers afterwards Eight Guineas more, which were. . .all the pecuniary Reward I ever had for fourteen or fifteen days labour, in the most exhausting and fatiguing Causes I ever tried: for hazarding a Popularity very general and very hardly earned: and for incurring a Clamour and popular Suspicions and prejudices, which are not yet worn out and never will be forgotten as long as History of this Period is read...It was immediately bruited abroad that I had engaged for Preston and the Soldiers, and occasioned a great clamour....
"The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the Jury was exactly right.
"This however is no Reason why the Town should not call the Action of that Night a Massacre, nor is it any Argument in favour of the Governor or Minister, who caused them to be sent here. But it is the strongest Proofs of the Danger of Standing Armies."
Posted by: Alan G. Kaufman | October 01, 2007 at 08:25 AM
I wonder what John Adams, the lawyer who represented the British soldiers accused of murdering the Boston Massacre in 1770, would think of this debate.
It's not obvious, but it's worth pondering.
Here is what some report to be his diary entry from the time (which I cut and pasted from "wikipedia"):
March 5, 1773:
(The third anniversary of the Boston Massacre)
"I. . .devoted myself to endless labour and Anxiety if not to infamy and death, and that for nothing, except, what indeed was and ought to be all in all, sense of duty. In the Evening I expressed to Mrs. Adams all my Apprehensions: That excellent Lady, who has always encouraged me, burst into a flood of Tears, but said she was very sensible of all the Danger to her and to our Children as well as to me, but she thought I had done as I ought, she was very willing to share in all that was to come and place her trust in Providence.
"Before or after the Tryal, Preston sent me ten Guineas and at the Tryal of the Soldiers afterwards Eight Guineas more, which were. . .all the pecuniary Reward I ever had for fourteen or fifteen days labour, in the most exhausting and fatiguing Causes I ever tried: for hazarding a Popularity very general and very hardly earned: and for incurring a Clamour and popular Suspicions and prejudices, which are not yet worn out and never will be forgotten as long as History of this Period is read...It was immediately bruited abroad that I had engaged for Preston and the Soldiers, and occasioned a great clamour....
"The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the Jury was exactly right.
"This however is no Reason why the Town should not call the Action of that Night a Massacre, nor is it any Argument in favour of the Governor or Minister, who caused them to be sent here. But it is the strongest Proofs of the Danger of Standing Armies."
Posted by: Alan G. Kaufman | October 01, 2007 at 08:25 AM
I wonder what John Adams, the lawyer who represented the British soldiers accused of murdering the Boston Massacre in 1770, would think of this debate.
It's not obvious, but it's worth pondering.
Here is what some report to be his diary entry from the time (which I cut and pasted from "wikipedia"):
March 5, 1773:
(The third anniversary of the Boston Massacre)
"I. . .devoted myself to endless labour and Anxiety if not to infamy and death, and that for nothing, except, what indeed was and ought to be all in all, sense of duty. In the Evening I expressed to Mrs. Adams all my Apprehensions: That excellent Lady, who has always encouraged me, burst into a flood of Tears, but said she was very sensible of all the Danger to her and to our Children as well as to me, but she thought I had done as I ought, she was very willing to share in all that was to come and place her trust in Providence.
"Before or after the Tryal, Preston sent me ten Guineas and at the Tryal of the Soldiers afterwards Eight Guineas more, which were. . .all the pecuniary Reward I ever had for fourteen or fifteen days labour, in the most exhausting and fatiguing Causes I ever tried: for hazarding a Popularity very general and very hardly earned: and for incurring a Clamour and popular Suspicions and prejudices, which are not yet worn out and never will be forgotten as long as History of this Period is read...It was immediately bruited abroad that I had engaged for Preston and the Soldiers, and occasioned a great clamour....
"The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the Jury was exactly right.
"This however is no Reason why the Town should not call the Action of that Night a Massacre, nor is it any Argument in favour of the Governor or Minister, who caused them to be sent here. But it is the strongest Proofs of the Danger of Standing Armies."
Posted by: Alan G. Kaufman | October 01, 2007 at 08:25 AM
I wonder what John Adams, the lawyer who represented the British soldiers accused of murdering the Boston Massacre in 1770, would think of this debate.
It's not obvious, but it's worth pondering.
Here is what some report to be his diary entry from the time (which I cut and pasted from "wikipedia"):
March 5, 1773:
(The third anniversary of the Boston Massacre)
"I. . .devoted myself to endless labour and Anxiety if not to infamy and death, and that for nothing, except, what indeed was and ought to be all in all, sense of duty. In the Evening I expressed to Mrs. Adams all my Apprehensions: That excellent Lady, who has always encouraged me, burst into a flood of Tears, but said she was very sensible of all the Danger to her and to our Children as well as to me, but she thought I had done as I ought, she was very willing to share in all that was to come and place her trust in Providence.
"Before or after the Tryal, Preston sent me ten Guineas and at the Tryal of the Soldiers afterwards Eight Guineas more, which were. . .all the pecuniary Reward I ever had for fourteen or fifteen days labour, in the most exhausting and fatiguing Causes I ever tried: for hazarding a Popularity very general and very hardly earned: and for incurring a Clamour and popular Suspicions and prejudices, which are not yet worn out and never will be forgotten as long as History of this Period is read...It was immediately bruited abroad that I had engaged for Preston and the Soldiers, and occasioned a great clamour....
"The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the Jury was exactly right.
"This however is no Reason why the Town should not call the Action of that Night a Massacre, nor is it any Argument in favour of the Governor or Minister, who caused them to be sent here. But it is the strongest Proofs of the Danger of Standing Armies."
Posted by: Alan G. Kaufman | October 01, 2007 at 08:25 AM
Never fear, the CCR will find someone to represent KSM.
Posted by: humblelawstudent | October 02, 2007 at 06:05 PM