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).

1. Ethics in the Justice
Department’s Advice on
Counter Terrorism
Presenter:
Prof. Afsheen John Radsan
Friday, October 16, 2009

2. THE ISSUE:
Interrogations of
•Non-U.S. Citizens
•Outside the United States

3. Why not the F.B.I.?
Robert S. Mueller III, F.B.I.

4. Why not the Department of Defense?
Donald Rumsfeld
Former Secretary of Defense

5. Why the C.I.A.?

6. THE LAWYERS
1. Office of General Counsel (OGC)
2. Office of Legal Counsel (OLC)

7. Who is the Client?

8. 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.

9. 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.

10. Possible Habeas Jurisdiction
over Aliens Held in
Guantanamo Bay, Cuba
December 28, 2001

11. Possible Habeas Jurisdiction over Aliens Held in Guantanamo Bay, Cuba

12. 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.

13. Application of Treaties and
Laws to al Qaeda and Taliban
Detainees
January 9, 2002

14. 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.

15. Standards of Conduct for
Interrogation under 18 U.S.C.
§§2340-2340A
August 1, 2002

16. Standards of Conduct for Interrogation under 18 U.S.C. §§2340-2340A

17. Standards of Conduct for Interrogation under 18 U.S.C. §§2340-2340A

18. 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.

19. 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.

20. 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.

21. 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.

22. 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

23. 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

24. 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