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Ethics in the Justice Department’s Advice on Counter Terrorism
 

Ethics in the Justice Department’s Advice on Counter Terrorism

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Professor Afsheen John Radsan reviews, in the context of various memoranda from the Justice Department’s Office of Legal Counsel, the differences between a lawyer’s duty of zealous advocacy (ABA ...

Professor Afsheen John Radsan reviews, in the context of various memoranda from the Justice Department’s Office of Legal Counsel, the differences between a lawyer’s duty of zealous advocacy (ABA Model Rule 3.1) and the duty of candor in legal advice (ABA Model Rule 2.1).

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    Ethics in the Justice Department’s Advice on Counter Terrorism Ethics in the Justice Department’s Advice on Counter Terrorism Presentation Transcript

    • Ethics in the Justice Department’s Advice on Counter Terrorism Presenter: Prof. Afsheen John Radsan Friday, October 16, 2009
    • THE ISSUE: Interrogations of •Non-U.S. Citizens •Outside the United States
    • Why not the F.B.I.? Robert S. Mueller III, F.B.I.
    • Why not the Department of Defense? Donald Rumsfeld Former Secretary of Defense
    • Why the C.I.A.?
    • THE LAWYERS 1. Office of General Counsel (OGC) 2. Office of Legal Counsel (OLC)
    • Who is the Client?
    • Model Rules of Professional Conduct Counselor Rule 2.1 Advisor In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.
    • Model Rules of Professional Conduct Advocate Rule 3.1 Meritorious Claims And Contentions A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
    • Possible Habeas Jurisdiction over Aliens Held in Guantanamo Bay, Cuba December 28, 2001
    • Possible Habeas Jurisdiction over Aliens Held in Guantanamo Bay, Cuba
    • Possible Habeas Jurisdiction over Aliens Held in Guantanamo Bay, Cuba We conclude that the great weight of legal authority indicates that a federal district court could not properly exercise habeas jurisdiction over an alien detained at GBC. Nonetheless, we cannot say with absolute certainty that any such petition would be dismissed for lack of jurisdiction. A detainee could make a non-frivolous argument that jurisdiction does exist over aliens detained at GBC, and we have found no decisions that clearly foreclose the existence of habeas jurisdiction there. On the other hand, it does not appear that any federal court has allowed a habeas petition to proceed from GBC, either. While we believe that the correct answer is that federal courts lack jurisdiction over habeas petitions filed by alien detainees held outside the sovereign territory of the United States, there remains some litigation risk that a district court might reach the opposite result.
    • Application of Treaties and Laws to al Qaeda and Taliban Detainees January 9, 2002
    • Application of Treaties and Laws to al Qaeda and Taliban Detainees CONCLUSION For the foregoing reasons, we conclude that neither the Federal War Crimes Act nor the Geneva Conventions would apply to the detention conditions in Guantanamo Bay, Cuba, or to trial by military commission of al Qaeda or Taliban prisoners. We also conclude that customary international law has no biding legal effect on either the President or the military because it is not federal law, as recognized by the Constitution. Nonetheless, we also believe that the President as Commander-in-Chief, has the constitutional authority to impose the customary laws of war on both the al Qaeda and Taliban groups and the U.S. Armed Forces.
    • Standards of Conduct for Interrogation under 18 U.S.C. §§2340-2340A August 1, 2002
    • Standards of Conduct for Interrogation under 18 U.S.C. §§2340-2340A
    • Standards of Conduct for Interrogation under 18 U.S.C. §§2340-2340A
    • Standards of Conduct for Interrogation under 18 U.S.C. §§2340-2340A I. Section 2340 defines the act of torture as an: act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.
    • Standards of Conduct for Interrogation under 18 U.S.C. §§2340-2340A The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result.
    • Standards of Conduct for Interrogation under 18 U.S.C. §§2340-2340A Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield.
    • Standards of Conduct for Interrogation under 18 U.S.C. §§2340-2340A VI. Defenses In the foregoing parts of this memorandum, we have demonstrated that the ban on torture in Section 2340A is limited to only the most extreme forms of physical and mental harm. We have also demonstrated that Section 2340A, as applied to interrogations of enemy combatants ordered by the President pursuant to his Commander-in-Chief power would be unconstitutional. Even if an interrogation method, however, might arguably cross the line drawn in Section 2340, and application of the statue was not held to be an unconstitutional infringement of the President’s Commander-in-Chief authority, we believe that under the current circumstances certain justification defenses might be available that would potentially eliminate criminal liability. Standard criminal law defenses of necessity and self-defense could justify interrogation methods needed to elicit information to prevent a direct and imminent threat to the United States and its citizens.
    • Application of 18 U.S.C. §§ 2340-2340A to Certain Techniques That May Be Used in the Interrogation of a High Value al Qaeda Detainee May 10, 2005
    • Application of 18 U.S.C. §§ 2340-2340A to Certain Techniques That May Be Used in the Interrogation of a High Value al Qaeda Detainee
    • The Torture Papers THE ROAD TO ABU GHRAIB Karen J. Greenberg and Joshua L. Dratel New York: Cambridge University Press 2005 ISBN-13 978-0-521-85324-8