The immorality of torture leads – inevitably – to prosecutorial misconduct

At Balkinization, Professor David Luban discusses how the adoption of a torture regimen results in this additional unintended consequence: government lawyers are systematically violating “ethics rule[s] forbidding them from speaking with parties who have legal representation without obtaining consent of the party’s lawyer.” Professor Luban explains in greater detail:

This is the “no-contact rule” in the ethics codes. Under existing law, contact forbidden to lawyers is forbidden to their agents and investigators as well. Rather clearly, the Clean Team were doing investigations on behalf of the prosecution, and in fact the Times story [link] quotes a government official who confirms the role that prosecutors played in guiding the Clean Team.

All the Guantanamo detainees are represented by lawyers handling their habeas corpus and Detainee Treatment Act cases. And the Clean Team re-interrogations are poster children for exactly the evil that the no-contact rule was designed to remedy: getting a represented party to make admissions that he would never make if his lawyer had the opportunity to advise him.

* * * [I]n 1998, Congress passed the McDade Amendment, which requires federal prosecutors to abide by state ethics rules, including the no-contact rule. * * * Military lawyers aren’t covered by the McDade Amendement [sic], but their own ethics codes contain the no-contact rule, and require them to follow state bar rules. [Link here to the adopted rules of professional conduct for all 50 states plus Washington, D.C.]

The ABA’s version of the no-contact rule reads: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” (State and military rules are similar.)

In the Guantanamo cases, three questions occur. First, is the subject of the representation the same? The Clean Team wants witnesses to talk about 9/11 and who was involved; the habeas lawyers are challenging the legality of their imprisonment. These are not identical legal issues, but the overlap is obvious: both have to do with who the detainee is, who he knows, and what the nature of his involvement with Al Qaeda is, if any. It’s hard to believe that the Clean Team interrogations are not about “the subject of the representation.”

Second, are the prosecutors authorized by law to question represented persons without the consent of their lawyers? As far as I know, no such law exists (do readers have information to the contrary?) And third, were the Gitmo prosecutors authorized to send out the Clean Team by a court order of the military commissions? If so, has it been made public? Revealed to defense counsel? Was there an adversarial hearing over whether such a court order would be proper? I’m fairly confident that the answer to the last set of questions is no. Put it all together, and it looks like the activities of the Clean Team stem from unclean prosecution tactics.

So what rationale do these government lawyers use to justify their actions? Professor Luban explains:

[T]he government does not consider the detainees’ lawyers to actually represent them, because the habeas and DTA lawyers were not assigned by the military commissions Appointing Authority. In an e-mail to me, [Charles] Swift[, who represents Salim Hamdan,] posed the question this way: “When is an attorney not an attorney?” Answer: when the government wants to pretend that the attorney’s client is unrepresented, in order to send the Clean Team in to get information that will avoid all the unpleasantness that torture raises in regimes that purport to respect the rule of law. * * *

Professor Luban correctly concludes:

Admittedly, in the grand scheme of things prosecutorial violations of the no-contact rule don’t have nearly the significance of all the other things wrong with Guantanamo and the military commissions. But the Clean Team and its investigations are part of something that goes much deeper than infractions of the ethics rules: dealing with tortured evidence in a legal system that purports to be civilized. * * *

* * * For years, critics have predicted that – along with all its other evils – torture would make it harder to bring terrorist criminals to justice. Those chickens are now coming home to roost. Small wonder if prosecutors have to cheat on their professional ethics to try to make the stain go away.

The damages caused by the arrogance, recklessness and incompetence of the Bush administration and its lawyers continue to increase. Had enough? File a grievance.


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