The Volokh Conspiracy

I agree with you that there are differences. One more significant feature here, though, is the (implicit?) threat to bring charges against Maj. Mori under the UCMJ. That's not, directly, suggesting a "consequence" for representing a detainee, but it could force him to withdraw as counsel. If the charge is something as nebulous as "criticizing officials" -- something ordinary attorneys and citizens would consider well within their rights -- then I think you have to question the prudence (to be polite) of Col. Davis's statement.

It would not be up to this prosecutor on whether the defense attorney violated Art.88. And, frankly, even if he did, the worst that might happen (in reality) is that Mori might get the boot and go make three times as much money in private practice. There is not much risk here for Mori, as he's almost untouchable in his current role. Will he have a career in the military after this? It sounds like he doesnt care, and, in fact, is laying the foundation for some civilian work.

Is there a gag order in the gitmo cases? If not, why shouldn't the guy have the same freedom to jabber about his case as regular defense lawyers occasionally do? I understand that the UCMJ puts some restrictions on what he can say, and he should be urged (intimidated?) to refrain from violating the UCMJ, but otherwise, I don't see what he's doing wrong legally.

Perhaps he sees himself imitating Wm. Kuntsler &his ilk, who were never at a loss for words about their cases and clients--not always to their clients' advantage, I would add, but also not in violation of any law.

As a former military lawyer, I think both lawyers should button their respective lips.

I agree with Jonathan's assessment that Davis's comments do not rise to the level of Stimson's ill chosen comments. But, as the chief prosecutor, it is, IMO, not his place to criticise one of his opponents. That smacks of command incluence for one thing, and is generally quite ineffective for another.

That, however, does not excuse Davis for trying his case in the Australian Press.

UglyDuckling,

(1) I don't see where Davis threatened him with prosecution. He said that the Marines should determine whether he violated a provision.

(2) Davis doesn't seem to be questioning the representation; he seems to be questioning the propriety of activity beyond the scope of that representation.

It is precisely the profound reprehensibility of Stimson's remarks that requires us to understand when the mistake is repeated and when it is not. I fear that if we go up in arms about something like this, then it sacrifices legal credibility on the more egregious violations.

Stimson went after the fact of representation and implied that "pro-terrorist" organizations were funding it, and gave, with a wink and a nod, a word of encouragement to any big company willing to ditch a client on that basis.

Ugly Duckling,

This incident involves one side's lawyer criticizing the other side's lawyer -- which, alas, is about as common an act for lawyers as having a morning cup of coffee. The Cully Stimson incident was about cutting off a litigant's access to lawyers -- a far less common and far more serious matter (even if, as it turned out, Stimson's words immediately backfired on himself).

The whole notion that traveling the lecture circuit in Australia constitutes representation of his client strikes me as quite absurd. That aside, one wonders just how far some of the commenters here would be willing to go. Let's imagine that Hillary was president, and a certain group of leading officers were found to be plotting a coup. After their arrest, they are tried under the UCMJ. Lo and behold, their counsel starts making the media and lecture circuit rounds, explaining how the coup-plotters were justified because Hillary's military/foreign/domestic (take your pick) policies were undermining the republic. No problem? Really?

I find it remarkable that folks on the left, of all people, would be so sanguine--as they have been through the current war--with active duty officers inserting themselves into the political dialogue, and positively ecstatic when they stand in opposition to the presidenet. Their alignment with your policy preferences may give you the tinglies, but isn't there something to be said with ensuring that the military--both corporately and individual officers--has no role in domestic politics and are completely and, with very rare exceptions, completely subservient to the political branches (primarily the CiC)?

So while it does seem to me that there are differences between this case and the stimpson matter (based on very little knowledge) the significance of these differences depends on what your idea of the breadth of a vigorous defense.

It seems clear that public opinion can have an influence on verdicts, particular in trials involving so much nationalist sentiment, political implications and public fear (of terrorism). If the members of the jury, or judges, go into the hearing already immersed in the view that this individual is a dangerous terrorist the defense is at a serious disadvantage. If we won't tolerate forcing the defendent to dress in prison garb during trial for fear of introducing bias how much worse is it for the jurors to repeatedly hear the defendent deemed a proven terrorist in the media without any presenting a defense?

Given this fact is not preventing juror taint a necessary and proper function for a defense attorney? Given the defense attorney can hardly ask for a gag order to be slapped on the US president or other major political figures (free speech) it seems his only alternative is to counter the negative media perception of his client. Hence in situations where the defense attorney might reasonably believe preserving jury neutrality requires getting into it in the media must he not have the freedom to best represent his client?

Jim Rhoads,

I agree that usually both attorneys should shut up and leave the media out of it. However, a case like this is a bit different. Political reality/calculations require that the government offer some justification to the media for putting an Australian on trial for terrorism. So if both the prosecutor and defense attorney shut up Hicks end up disadvantaged because someone is still giving out incriminating details to the press. Once Hicks became a household name it seems the only fair way (and still not very fair given the government's ability to choose what to unclassified) to procede was to let both sides tell the media at least the broad outlines of their side.

In short compare the number of appearances of the defense attorney to the number of press conferences given by US government officials suggesting he is a terrorist.

Dog,

So what happens if accusing the president of treason or other horrible acts is a necessary part of a defense? What if the defense is the president is framing him because the defendent saw the president having an affair (or committing murder)? What if the defense is that the defendent was ordered by the president to do some awful thing or is taking heat for a secret agent?

Many generally applicable military rules need to be changed for military lawyers (e.g., they can't let themselves be ordered to scuttle the case) and this may be one of them.

logicnazi:

Are you suggesting that part of the strategy of the defense is to turn Australian opinion against the process of the US military tribunal so that Australian diplomatic pressure is exerted on our government for leniency, etc?

If so, I understand your argument. Generally, were I the Major, though, I would try to enlist civilian counsel to undertake that task.

I don't pretend to know anything about military law or ethics. But from what I gather from the press coverage, Mori has been very effective in pressing Hicks's case in Australia. As a result of those efforts (and no doubt many other factors), the Australian government has been pressuring the US government to act in the Hicks case, and it has - by charging him with a much less serious offense than was originally threatened. That looks to me like effective advocacy.

Mori is using the press to obtain political and diplomatic pressure to help his client. I can't see why that would be improper - especially when the very process by which his client will be tried is now a hotly contested political question in the US, and an issue that matters to the Prime Minister of Australia. Context matters here.

As for Colonel Davis's statements, I can't find any actual quotes attributed to Davis, but the IHT's paraphrased statement suggests that he made an empty threat - that it would be up to the Marines (i.e., somebody else) to decide whether Mori had violated Article 88. It's not as bad as Stimson's comments, which baselessly suggested that the lawyers for the detainees were funded by terrorists. Still, an unjustified threat by a prosecutor that a defense attorney's lawful, effective advocacy could cause the defense attorney to be charged with a crime is not to be encouraged.

Colonel Davis' remarks are not as bad as Cully Stimson's. Only the last part, about Article 88, strike me as ill-chosen. He essentially used an artful way of implying that Major Mori's remarks may be illegal, without saying they were. Obviously, Colonel Davis is not a political hack, like Mr. Stimson, but an experienced litigator.

logicnazi,

of course they're both "effective advocacy" in the sense that they yield better outcomes for clients. the difference is that one arguably breaches a professional norm of lawyering and another one doesn't. in the end, it will be the government that benefits from the absence of any bright lines, and it seems to me the most sensible line to draw, in terms of what is intolerable, is discouraging representation of clients.

Jonathan wrote: "Based upon this report, Col. Davis' comments are not remotely comparable to those made by Stimson. Davis did not challenge the fact of representation, nor did he suggest that Mori or anyone else should suffer consequences for representing detainees. ...Such criticism is not tantamount to lawyer intimidation, nor does it compromise any detainee's defense. At most, it seems that Davis would like Mori to spend more time preparing his defenses in court, and less time courting international public opinion."

I'd second UglyDuckling's question -- Is Jonathan being intellectually dishonest or just naive? Although I'd throw in a third to give him benefit of the doubt -- perhaps he's just trying to be provocative in posing the question?

Obviously, the two men - Davis and Stimson - *are* "remotely comparable. They are both high-ranking officials in the military chain of command who have made derogatory statements at defense counself for detainees, designed to subdue their zealous advocacy for those clients. Yes, there are differences. Stimson attempted to shame large law firms (outside of the military chain of command) into adandoning their clients (or perhaps his intent was retribution, or intimidation toward others lawyers who might be inclined to represent detainees in the future). Cully's plan backfired.

Davis's comments, by contrast, were designed to tone down the zealous advocacy of his opposing counsel by threat of legal prosecution for such advocacy. One could say Davis framed his threat in a more guarded manner, but when it comes down to it, Davis's threat is more serious. David isn't the prosecutor who'd be in a position to charge Mori himself, but he *is* in the military chain of command, and Mori remains subject to the UCMJ.

If a small-time solo practioner were representing an unpopular client in a federal prosecution, and the AUSA in that case were to make a public statement in a national newspaper suggesting that the defense attorney should be prosecuted by state authorities because of the defense counsel's statements in representing his client (even if those statements included harsh criticism of the law at issue, or various federal or state policies or politicians), I should think everyone at Volokh -- including Jonathan -- would be at least a bit outraged.

midatlantan-

i don't understand. i'm not "outraged," and i'm hardly sympathetic to this administration. in stimson's case, he was thuggishly penalizing the fact of representation - hey wall street companies, drop your law firm if they do gitmo litigation. in davis's case, any "threat" was not accompanied by a FOIA request, and it is not directed at the fact of representation. those aren't "minor" differences. sure, they are comparable, in the sense that the two situations illustrate what is versus what is not in bounds for counsel seeking to criticize his adversary.

but if you want to say "so what" to those differences, please explain why the subject matter of the criticism is somehow less important than identity of the criticizer.

But from what I gather from the press coverage, Mori has been very effective in pressing Hicks's case in Australia. As a result of those efforts (and no doubt many other factors), the Australian government has been pressuring the US government to act in the Hicks case, and it has - by charging him with a much less serious offense than was originally threatened. That looks to me like effective advocacy.

Exactly. Mori recognizes that this detention has VERY LITTLE to do with "the law" (a concept rejected by the White House whenever it proves inconvenient) and that a political solution may be what's best for his client.

Frankly, I'm impressed that Mori is more interested in getting his guy free than in litigating the case.

RGB,

So you think every press conference that generals or other military men held where they stated that there was no torture at Gitmo deserves discipline?

Anyway I'm not so much convinced the particular rule I gave is the right one. It was just a stab at the right direction but I just wanted to get the point across that no simple universal rule is going to work here.

Either we tie the military's hands and don't let them deny the ridiculous and horrible charges directed against them by protesters (say who allege people at gitmo were murdered) or we need some looser idea of what counts as political interference. Once we get to the point of allowing military men to deny people were tortured at gitmo how can it be unacceptable for them to claim they were tortured?

what exactly does the JAG corps do to assist the military in winning wars? is what they do somehow more important than winning a war? how is the size of the present JAG corps relative to its size in WWII up to now, when the military was much larger. is it simply a self serving bureaucracy where, much like US Attorneys offices, people can serve their time until lining up that private practice job? are attorneys working for the JAG corps able to lie through their teeth like defense attorneys do so often in the civilian world?

ed o:

What the JAG corps does for the military is create the perception that members of the army will be given a fair defense and not bulldozed for political expediency or a PR win. They also prosecute those who break military law detering unacceptable behavior like revenge killings.

In short JAG serves an important purpose in maintaining both the professionalism, moral and enlistment of the men who fight our wars. If you don't think people get a fair shake in the military you are going to be a lot less likely to join and die for it.

It is not only unsurprising but necessary that JAG has grown since the cold war. With soldiers in Iraq and Afghanistan enlisted men are a lot more likely to go AWOL and soldiers are more likely to misbehave or incur serious infractions of the rules than when their job was to man large permanent bases in Germany. I mean just look at the cases where soldiers are charged with killing unarmed Iraqis and you have answered the question about why we might need a larger JAG core.

As an aside this is the other thing JAG does for the military. By prosecuting soldiers who misbehave it partially insults the US from the bad PR caused by rogue soldiers without requiring us to turn out men over to the Iraqis.

Wow, ed o, your vitriol toward the Jag Corps is really uncalled for. Every JAG officer I've known has been among the most honest and upright soldiers/sailors/marines I've ever met (and yes, that "JAG officer" line was a gimme -- so laugh away, ed). JAG duty certainly isn't the fast-track to riches. If money is what he or she is after, a law school grad would be better off going straight to the private sector. So no, for most JAG folks, it's not the money. Do they help "win wars"? Well, I'd take issue with whether that's the sole or overriding goal of the military, especially in peacetime. Perhaps a better way of putting it would be defending the country. And the JAG Corps certainly do contribute to that mission. If nothing else, they help keep the enormous machinery of the military running, much like the gazillions of other non-combat troops do (like say, MPs or clerks). In a military that is larger than many US states themselves, I'm assuming you would agree there are going to need to be some rules, those rules will frequently be broken, and that disputes will arise about those rules. In other words, there's got to be some sort of functioning legal system. I'm not sure what you're thinking the alternative would be. Should this all be handled by civilian law and courts, rather than the UCMJ and the military itself?

given any evidence that we had the "right number" of JAGS? it is impossible to give an evidence on the right number-what we do know is that, while the number of people doing the job of fighting is going down, the number of lawyers doing whatever is going up. if the JAG corps helps to win wars, that might make sense. you have presented zero evidence that the JAG corps does help win wars. if you have such evidence, please put it out there for review. it sounds a lot to me like a standard self serving bureaucratic niche in the military which has taken on a life of its own. perhaps, using your logic, we can increase the JAG numbers and simply assign a lawyer to each service member. that would be the best of both worlds-complete due process and inability to fight a war in one package.