Have U.S. government lawyers, including military attorneys, designed policies with the "goal of separating . . . lawyers from their clients" at Guantánamo? Have these government lawyers "worked . . . hard to take out the adversary lawyers at Guantánamo?" Are government policies unethically interfering with the responsibilities of defense counsel for the detainees? Are there special difficulties for military defense attorneys?
These are some of the ethics questions panelist Professor David Luban of the Georgetown University Law Center sought to address at a conference on the American legal profession sponsored by Stanford University in March of 2008. The Stanford Law Review published his expanded views under the title Lawfare and Legal Ethics in Guantánamo.
The purpose of this Response is to assess critically Professor Luban's effort and, in key areas, dispute his inferences and conclusions. In particular, we hope to add the perspective of military lawyers to this important subject. In doing so, we will not, however, debate all of the substantive issues of law that Professor Luban's Article touches upon. Thus, for example, we will not discuss the extent of habeas rights following the Supreme Court's decision in Boumediene v. Bush or the architecture of the Military Commissions Act of 2006. Nor will this Article advocate for Guantánamo per se, as we share the almost universal agreement of a need for an alternative to the detention center. Nor do we intend to be apologists for torture or any other illegality committed by anyone.