Surely there is a distinction between stirring up sympathy for one's client and violating the rules that govern one's conduct. I would have thought Mori could have accomplished the former without the latter. If he did violate those rules, he should bear the consequences.

John,
Mori's objection - shared by plenty - was with the rules. A just prosecution calls for defence by the rules. This political prosecution called for a political defence, as evidenced by a spectacularly political plea bargain.

First, it should be noted that Luban is clearly other than a "neutral" legal analyst/commentator. He intersperses his personal political opinions throughout his discussion of this matter. (The scare-quotes at the start and Luban's explanation of their use; "alternate universe"; "Mori was not involving his country in confusion [that's the Bush administration's job]"; etc.)

Second, he fails to do an adequate job comparing/ contrasting the "rules" for defense attorneys who are civilians and those who are active duty military. ("That's the ABA Model Rule, but essentially similar rules govern lawyers, including military lawyers, in every jurisdiction.") Is there more than one "jurisdiction" for military lawyers, who only defend clients in military proceedings? What exactly is/are the "rule"/"rules" that pertain to military lawyers doing defense work? Luban recognizes there are differences ("...only military lawyers face criminal prosecution for denouncing high government officials"), and that the differences may be consequential ("Mori's representation would have been 'materially limited' compared with what a civilian lawyer could do on Hicks's behalf."), but he doesn't further develop an issue central to "the vindication of Major Mori.")

And what 1L couldn't quickly and effectively distinguish Dratel's circumstances from those of Lynne Stewart? (a quick expression of my own personal political opinion - Stewart was not sentenced to nearly enough jail time.) Dratel balked at signing that statement and binding himself because there was the possibility of "new" rules coming into effect later; Stewart knew the "rules" when she pledged to respect them, then made a conscious, well-informed decision to violate them big time.

For better or worse, the military is different. Things may be required of professionals in the military they would not do in civilian life, perhaps would not be permitted to do in civilian life. For example, one has lesser expectations of confidentiality in military health care than in civilian health care, and military medical officers may under some circumstances be required to "rat out" their patients while their civilian counterparts might be subject to sanctions for doing so. Luban is entitled to his opinion about the desirability or propriety of those differences, but it is the analysis of those differences and their consequences that is of real interest. How can one pronounce Major Mori "vindicated" without engaging in such analysis other than by saying that Mori, whether by means proper or improper ("political" campaigning on Hicks's behalf in Australia?), obtained for Hicks a better outcome than Hicks might otherwise have gotten?

(BTW, does Balkinization generally lean Left in the same way that the Volokh Conspiracy leans Right or libertarian?)

"exactly the right one for his client but exactly the wrong one for his country."

There, I fixed that last sentence for him.

Luban's post makes me uneasy, because he appears to subscribe to an anything-goes interpretation of a lawyer's obligation to represent his client. In particular, he seems to believe it's permissible for Mori to have committed what might have be a crime (adverse public commentary on high Federal officials by a uniformed service member) in pursuit of his client's interest. If that's so, then I am curious where Luban draws the line between acceptable criminal conduct undertaken to support a client and unacceptable conduct. Is anything OK as long as you get away with it?

neurodoc,

All the contributor's to balkanization are well-known leftists (to use an overbroad generalization). Some like Professor Lederman and Balkin write from a fairly politically neutral perspective and don't try to score cheap points. Others are less restrained.

"I don't know what to think. Due to the predominance of political GWOTting over evidential fact-finding, we'll likely never know. "

But of course it's pretty clear you're not being candid here, because your whole post is dismissively critical of the US administration, the legal processing of battlefield detainees, the manner in which evidence is being collected, the conditions in which detainees are being maintained, etc etc. Why not be honest? It's not as though a post that claims Guantanamo is "way worse than any prison" is likely to be taken seriously anyway.

AlanDownunder:

I don't know what to think. Due to the predominance of political GWOTting over evidential fact-finding, we'll likely never know.

Oh, don't be so coy. Why not just come out and defend Hicks' right to sign up with the Taliban to engage in jihad? It's not like they ever oppressed anyone or anything.

The Bali bombers killed lots of people (that many were Australian is irrelevant).

Your lack of concern for your fellow countrymen is noted. It appears that your concern is reserved for killers like David Hicks. Maybe he should be handed over to the Indians so they can treat him with tender mercy.
http://www.news.com.au/story/0,23599,21200396-2,00.html
Excerpts:

The American file is consistent with a letter Hicks wrote to his family in Adelaide in which he admits to firing hundreds of bullets in Kashmir at the enemies of Islam.
...
The training camp [that Hicks attended] was run by Lashkar-e-Toiba, the army of the pure, Islamic fundamentalists fighting to free Muslims under Indian rule and designated a terrorist group by Australia in 2003.
...
Australia has an extradition relationship with India as a fellow member of the Commonwealth that could allow the transfer of a suspect in special circumstances.
...
LET [Lashkar-e-Toiba] has waged a brutal insurgency aimed specifically at "destroying" India and "annihilating" Hinduism and Judaism, having proclaimed Hindus and Jews to be enemies of Islam.

It has over the years - including 2000 when Hicks was apparently in action with it - waged a war not just targeting Indian troops in Kashmir, but also rounding up Hindus and Sikhs in the disputed territory and massacring them.

Please spare us the posturing about lynch mobs and the evil Guantanamo Bay detainment center and consider supporting innocent victims of terrorism worldwide instead of scum like David Hicks.

No comment on the fact that Hicks got a better sentence from the Military Commission than our home grown Californian boy got from the civil courts.

Is a defense attorney allowed to lie to support his case.

I really appreciate these useful and insightful comments, which I'll quote below:

If he did violate those rules, he should bear the consequences.

and the more more elaborate:

If he violated military law and/or disobeyed a direct order, he should be punished.

Well yes, we all agree that if someone violates military law, they should be punished. The point is, whether criticizing the tribunal process is criticizing the President. Of course, to those on the right, that's assumed.

In particular, he seems to believe it's permissible for Mori to have committed what might have be a crime (adverse public commentary on high Federal officials by a uniformed service member) in pursuit of his client's interest.

This only sounds less equivocal, but again, it's assumed that criticism of the tribunal process is criticism of federal officials who instigate the tribunal process. Similarly, a soldier who thinks he's fighting an awful war, is not allowed to say so, for that would be criticism of the President and thus, a violation of military law...it is assumed. It would be more accurate to say that it is an offense to the President, and thus his followers, and so worse than a violation of military law.

Of course, at least those guys equivocate. Davod just assumes Mori lied, and ed o believes that representing a client in a criminal prosecution (even one for a terrorist) is working for enemies of the country.