Ethical Implications for Military Defense Counsel Assigned to Represent Enemy Combatants in Military Commissions
Keith C. Ryan
President’s Military Order of November 13, 2001
Particularly, the President’s order requires a less than unanimous vote by the members of the commission for conviction or sentencing, including the imposition of a sentence of death. Additionally, the commissions will not follow traditional rules of evidence contained in the Military Rules of Evidence but will be authorized to consider evidence which would have probative value to a reasonable person. This standard will allow the introduction of hearsay and other evidence inadmissible in civilian or military courts. Unlike the decisions of courts-martial, which are subject to civilian review in the Court of Appeals for the Armed Forces and the Supreme Court, the decisions of the commissions are not reviewable in civilian courts. The decisions of the commissions are reviewed by a three-member review panel and then the Secretary of Defense or the President himself.
Military Commission Order Number 1
The Secretary of Defense, acting under authority delegated from the President’s November 13, 2001 order, issued Military Commission Order Number 1 on March 21, 2002 which set out the broad structure of the tribunals and their operation. It adopts many procedural standards of civilian courts or courts-martial, such as the use of the standard for conviction of proof beyond a reasonable doubt, the presumption of innocence, and the right of the accused to remain silent without adverse inference being drawn by the members of the commission. For example, the accused has a right to a military attorney but may obtain civilian defense counsel, at no cost to the government. Military defense counsel are required under the order to: “defend the Accused zealously within the bounds of the law without regard to personal opinion as to the guilt of the Accused.”
defense counsel, if desired by the accused, must be
Military Commission Instructions
The General Counsel of the Defense Department, under authority
granted by the two orders above, issued Military Commission Instructions Number
Civilian defense counsel, though required to hold a security clearance of SECRET or higher, are not necessarily entitled to “Protected Information” which can include, classified, classifiable or information concerning other national security interests. Another serious impediment for representation is the requirement, in Military Commission Instruction 5, that civilian defense counsel sign an affidavit contained at Appendix B. In this affidavit, the Civilian Defense Counsel acknowledges that he or she may not be entitled to be present at closed sessions or have access to the protected information discussed above. Even though detailed military counsel will be present when secret evidence is presented at trial, without court authorization, he or she “may not disclose any information presented during a closed session to individuals excluded from such proceeding or part therof.” This limitation would include the civilian defense counsel and the defendant. The Lawyers Committee on Human Rights notes in its report that “it may, of course, be difficult for the military lawyer to appraise the significance of, or devise a response to, such “Protected Information” without the assistance of the defendant.”
Further, the military attorney is the lead counsel and civilian counsel must agree to “work cooperatively with [military counsel] to ensure coordination of efforts and to ensure such counsel is capable of conducting the defense independently if necessary.” As one commentator has noted, this arrangement is contrary to the usual situation in court-martial practice, when a retained civilian attorney presumptively becomes lead counsel, and the client can either dismiss the detailed defense counsel or retain that attorney as associate counsel.”
Additionally, the counsel must “understand that my communications with my client, even if traditionally covered by the attorney-client privilege may be subject to monitoring or review by government officials, using any available means, for security and intelligence purposes.” Finally, the counsel must agree to “reveal to the Chief Defense Counsel and any other appropriate authorities, information relating to the representation of my client to extent that I reasonably believe it is necessary to prevent the commission of a future criminal act that I believe is likely to result in death or substantial bodily harm, or significant impairment of national security.” While ethics rules generally allow an attorney to breach attorney client privilege to prevent the commission of serious crime, the ABA Rules of Professional Conduct do not make such disclosure mandatory and do not include the term “significant impairment of national security.” In total, these restrictions combined with those highlighted in the President’s Military Order and Military Commission Order Number 1 make an effective and ethical defense by both military and civilian counsel potentially problematic.
Ethical Representation of Criminal Defendants
The ethical representation of defendants by both military and civilian attorneys requires competence, diligence and zeal. The questions for this paper is: When are the abilities of defense counsel so constrained as to make ethical representation impossible?
The National Association of Criminal Defense Lawyers’ (NACDL) Board of Directors, by unanimous vote, issued an ethics advisory opinion that “it is unethical for a criminal defense attorney to represent a person accused before these military commissions because the conditions imposed upon defense counsel before these commissions make it impossible for counsel to provide adequate or ethical representation.” NACDL finds that the combination of restrictions contained in Military Commission Instructions Number 4 and 5 make it impossible to fulfill the defense attorney’s obligation, recognized in MCI 5, to conduct a zealous defense. The chair of the NACDL’s military justice committee, David Rehnkopf, considered representing detainees before the commission but decided not to when he “ascertained that it would be unethical for me as an attorney to agree to waive the rights of a client I have never met, to agree to only half-zealously defend my client, and agree to terms, conditions, and restrictions that are irrelevant to “national security concerns.” David Sheldon , a civilian attorney who practices in military courts, has stated that “these restrictions in essence eviscerate the right of defendants to civilian counsel.” The criticism of the rules is not limited to individual defense attorneys. The American Bar Association Task Force on Treatment of Enemy Combatants Report of August 2003 found that “the rules, as now drafted, do not sufficiently guarantee that CDC (civilian defense counsel) will be able to render zealous, competent and effective assistance of counsel to detainees.” These civilian attorneys have the right to refuse representations but military attorneys do not. If a significant percentage of the civilian criminal defense bar, not know for shying away from controversial cases or defendants, believe that the constraints of the commissions make practice before them unethical, should, or is, the consideration different for military attorneys assigned as defense counsel?
Military Ethics Framework for Judge Advocates
Across the armed services, Judge Advocates are required to adhere to rules of professional conduct promulgated by their respective service and to the ethical standards of the bar to which they are admitted. This paper, for simplicity, focuses on the Army Regulations (AR 27-26) and its interrelation with state bar rules. AR 27-26 is based closely on the American Bar Association’s Rules of Professional Conduct, though it has been modified in recognition of differences in the practice of law in the military. As such, it contains provisions similar to those of the ABA Model Rules regarding competence, diligence, conflict of interest, communication and confidentiality of information.
It is the interrelation of these very provisions with the rules of the military commissions which have caused the American Bar Association Task Force on the Treatment of Enemy Combatants to find that providing zealous, competent and effective assistance to defendants would not be possible. In fact, with regard to the monitoring of attorney-client communications, the Task Force Report states that “that provision, which forces CDC to agree to an “invasion of the defense camp” by the government as a condition of service, clearly violates the attorney-client privilege, chills the attorney-client relationship of trust and confidence, and forces CDC to contravene the requirements of the Model Rules of Professional Conduct.” If this analysis were to be correct and adherence to the monitoring requirements were to violate the Model Rules, it would, by analogy, violate AR 27-26 and subject the attorney to internal Army discipline, including the qualification as trial or defense counsel at courts-martial. AR 27-26 states that “a lawyer shall not reveal information relating to representation of a client unless the client consents after consultation.” Though the client would be aware of the potential for monitoring, such knowledge is not a knowing waiver. The rules allow for disclosure when required or authorized to do so by law but this is a provision designed for lawful court orders and not surreptitious monitoring. Unlike monitoring of detainees in federal prison facilities, no notice is provided to detainees in military commission cases. Though the instruction states that the information will not be used against the accused, the fact that it might be used against other detainees and for other purposes will likely limit the free discussion between lawyer and client. The problem will be further compounded by the fact that where protected information is to be used, only the military attorney will be present and will be hampered by the possible reluctance of his client to fully disclose information know to him which may help the military attorney to evaluate the protected information.
Beyond ethical obligations imposed by the Army on its attorneys in AR 27-26, each attorney is potentially subject to discipline by its state bar. Rule 8.5 of AR 27-26 states that “every Army lawyer subject to these Rules is also subject to rules promulgated by his or her licensing authority or authorities. In case of a conflict between these Rules and the rules of the lawyer’s licensing authority, the lawyer should attempt to resolve the conflict with assistance of the lawyer exercising technical supervision over him or her. If the conflict is not resolved – (1) these Rules will govern the conduct of the lawyer in the performance of the lawyer’s official responsibilities.” For example, were a military defense counsel to have information obtained from his client which would have “significant impairment” on the readiness of a weapon system but was licensed in a jurisdiction following the Model Rules, he would be obligated to disclose this information under AR 27-27 but might be subject to bar discipline in his licensing state. The commentary to AR 27-26 Rule 8.5 correctly notes that conflict is “likely more theoretical than practical.” The key problems are not the rules themselves, which are generally similar, but the differing interpretation of those rules by the Army and the respective states. It seems unlikely any of the armed services would discipline for violating attorney-client confidentiality in conferring with a client subject to monitoring or for failing to disclose unclassified or unclassifiable protected information to the accused or civilian defense counsel when these actions are clearly envisioned in the Orders and Instructions related to Military Commissions. The same cannot necessarily be said for the state bars.
Since military attorneys must be licensed by one of the 54 state or territory licensing authorities, the tentacles of the local jurisdictions reach into the military. The very number of jurisdictions increases the likelihood that a bar association will reach an interpretation of its ethics rules which has the potential to have an adverse consequence for military attorneys. Through the years, the American Bar Association and the various state bar disciplinary authorities have provided ethics opinions, which relate to military lawyers licensed in their jurisdictions.
In some cases, states have given broad latitude to the military to regulate its own attorneys. For example, in an informal ethics opinion which has since been withdrawn for technical reasons related to the issuance of opinions, the Oregon State Bar found that Army attorneys who “follow the Army Rules of Professional Conduct will not be subject to discipline in Oregon, even if the conduct is inconsistent with Oregon ethical standards.” There are strong policy reasons for this position given the real differences with practice of law in the military. The Pennsylvania Bar Association recognized this in a 1997 opinion based on the concern of Army lawyer that in his representation of clients in non-judicial punishment (Article 15 of the Uniform Code of Military Justice) he did not have access to all the evidence in the case and that this might be malpractice per se. The Bar Association held that “a lawyer’s responsibility under our Code of Ethics requires us to zealously assert the client’s position under the rules of the adversary system.” The opinion took note that it was “obvious that the proceeding is regulated by the government” and that “rules of the federal government dictate what happens in this type of case. The government, in an effort to dispose of minor transgressions expeditiously have (sic) determined the procedure. I do not feel that you will be violating your responsibilities as an attorney or be charged with malpractice for complying with these military rules.” This opinion, though related to non-judicial punishment, provides reasoning and analysis which strongly supports the deference to military commissions which detail military counsel must hope for.
from other jurisdictions have tied military attorneys more closely to their
civilian counterparts. For example, the
American Bar Association Committee on Professional Ethics, in an informal
opinion in 1975, held that “the fact that the lawyer is in the military service
and is being compensated by the United States, and that defending the accused
is part of his military duties does not alter or detract from his ethical
Arizona State Bar has issued an opinion almost directly related to the
potential violation of attorney-client confidentiality with the potential
monitoring envisioned in the Military Instructions. The bar held that “effective representation
is not possible without the right of an accused defendant to confer in private
with his or her attorney . . . the right to private consultation with counsel
prevails regardless of the state’s purpose for the intrusion.” (emphasis added) The Bar Association further held that
“because the inquiring attorney is aware of the monitoring, any further
conferences with clients prior to the guarantee of their confidentiality would
violate ER 1.6(a).” In the case of
military commissions, detailed defense attorneys do not know that monitoring
takes place, only that the potential exists without notice. Nonetheless, detailed defense counsel
It is clear that the military
defense counsel have taken their ethical responsibilities seriously in their
vigorous defense of detainees to this point.
For example, five attorneys assigned to the Office of Military
Commissions filed an Amicus Brief with the United States Supreme Court in Fawzi
Al Odah, et al. v.
 Keith C.
Ryan is a Lieutenant in the United States Coast Guard Reserve currently
assigned as Training Officer for U.S. Navy Harbor Defense Command Unit 201 in
 Military Order of
 Department of Defense Military Commission Order Number 1
 MCO No. 1 4(C)(2)(a)
 Military Commission Instructions Number 1-8
 MCI 4 §3(B)(10)
 Trials Under Military Orders: A Guide to the Final Rules for Military Commissions, Lawyers Committee for Human Rights, July 2003, at 14.
 MCI No. 4 §3(E)(4)
 MCO No 1 6(B)(3)
 Trials under Military Orders supra note 7 at 3.
 MCI No. 5 §3(C)(2)
 Kevin Barry, “Military Commissions: Trying American Justice”, Army Lawyer November, 2003 at 6.
 MCI No 5, Annex B §2(I)
MCI No 5, Annex B §2(J)
 National Association of Criminal Defense Lawyers Ethics Advisory Committee Opinion 03-04 (August 2003) at 1.
 Id at 15.
Chris Lombardi, “Rough
Rules: Civilian Lawyers Reluctant to Defend Terrorism Suspects Because of
 Report of the American Bar Association Task Force on Treatment of Enemy Combatants, August 2003, at 2.
 Air Force Rules of Professional Conduct (1989), Navy Judge Advocate General Instruction 5803.1 (1987) and Army Regulation 27-26 Rules of Professional Conduct for Lawyers (1992)
 See generally Bernard Ingold, An Overview and Analysis of the New Rules of Professional Conduct for Army Lawyers, 124 Military Law Review 1 (Spring, 1989) examining a previous version of the rules.
 Task Force Report supra note 19 at 10.
 AR 27-26 Rule 1.6
Ingold, “Professional Responsibility Note: JAG Attorneys Following Military
Ethics Rules Will Not be Subject to Discipline for Violating Oregon Rules,” Army
Lawyer (January, 1990) at 42 analyzing Oregon State Bar Informal Ethics
Opinion 88-19. This opinion is not
published and cannot be relied upon by
Informal Opinion Number 96-147,
to Defense Counsel Not to Investigate Issue in Case,” American Bar Association
Informal Ethics Opinion 1074 (
Operation of Legal Offices in the Armed Services,” American Bar Association
Informal Ethics Opinion 1474 (
Number RI-172, State Bar of
 Arizona Bar Association Opinion Number 87-19 (September 18, 1987) citing State v. Warner, 150 AZ 123.
 John Mintz, “Lawyer
Criticizes Rules for Tribunals: Trials Won’t Be Fair; Military Attorney Says.”