Drone Program Legal Memo Released to Congress

The White House has apparently released legal memos justifying the killing of American citizens overseas as part of the US counter-terrorism campaign to the Senate and House Intelligence Committees, see NYT report here.  Note [update]:  I should mention in case you haven’t followed this issue closely in the last 3-4 days that a DOJ white paper on the legal basis for the drone program, the unclassified summary of the OLC legal memo, if you will, was released earlier this week.  The release of both the white paper and legal memo may be related to the fact that President Obama’s CIA Director nominee, John Brennan, has his confirmation hearings this week, see Lawfare coverage here.

Sinclair Supporters Out in Force

General Sinclair’s supporters are turning up the public relations campaign, see LA Times article here.  This interesting tidbit from the LA Times article:

Neither the general, his wife nor lawyers are directly involved in the website, said Carreen Winters of MWW, a New York public relations firm hired by Sinclair’s supporters. Winters says the general’s military attorneys, unlike civilian lawyers, can’t mount a public defense in this very public case.

“The facts are his best friend,” Winters said in an email.

Benjamin Abel, an Army spokesman at Ft. Bragg, said it would be inappropriate to comment: “It is imperative that we let the military justice system work as it is designed to do, in court.”

I think it is a disservice to the clients they are representing that military defense counsel feel they can’t use the media to counter the government’s release of information to the media–and I am not blaming defense counsel, I think the services have fostered that belief.  When General Sinclair was being investigated and charged the convening authority released information to the media, here and here, so why can’t military defense counsel?  I see no ethical restrictions.  AR 27-26 Rule 3.6 certainly doesn’t prohibit it.

18 Responses to “Military Justice News for Feb. 7, 2013”

  1. Outlaw Biker says:

    No Man is right.  The JAGs are so afraid of defense counsel going rogue, that they draw the line at no comments unless screened by government-owned Public Affairs offices.  3.6 does not prohibit a response in kind to the government releasing information, particularly if it’s inaccurate (at worst) or misleading (at best).  We in the defense community believe that gives rise to an ethical obligation to set the record straight.  Problem is, no defense counsel wants to risk his job by “going rogue” to defend his client against a government whose actions, intentionally or unintentionally, may be prejudicing the member pool.

  2. k fischer says:

    No Man/OB, 
    Here are a good few reasons:
    1.  Partington
    2.  In two years, your next boss could be the Chief of Justice, SVP, or TC you made look bad with your press release.
    3.  SOCO complaints are easy to file and a PITA to defend.
    4.  You don’t control what the press writes, i.e. look how the press tags on the military sexual assault stats in every story about Major Thompson’s court martial at the Naval Academy.
    And tactically, sometimes bad press without putting your story out can work to your advantage.  The panel members who have not read the stories before trial will be shocked at trial that the Government charged him with a GO#1 violation for possession of alcohol when they learn for the first time that it was an unopened bottle or that he was charged for sexually assaulting a woman who referred to him as ‘papa panda sexy pants.’  IMHO, this “shock” is what leads to acquittals, jury nullifications, or convictions with very light sentences.   If you put your side of the story out there and a potential panel members reads it, they will digest it over time and make a rational decision.  
    Perfect example, when I first read the text where the CPT called BG Sinclair “papa panda sexy pants,” I thought, “Who calls their rapist ‘papa panda sexy pants?’  This case is bs.  This guy is getting railroaded!”  After a few days of digesting it, I’m thinking, “Do we really need a General Officer leading troops who, while married, has an adulterous 3 year relationship with a CPT and allows her to call him pappa panda sexy pants?”  And, now I’m thinking that every bottle of liquor drank in violation of GO#1 was possessed and unopened at some point.

  3. Mike "No Man" Navarre says:

    KF–I am by no means endorsing the use of the press in trying your case.  All I am saying is that the military DC should have that in their toolbox to use and should not consider it out of bounds.

    In fact, my reaction to the “papa panda” is very much like yours.  Though, to play a little devil’s advocate, if you are facing a rape allegation, multiple year prison sentence, and registration as a sex offender, an adultery conviction, detachment for cause, and BOI probably aren’t all that bad an option.  And if the media can help you get that . . . . just saying.

  4. Lieber says:

    Yup, unfortunately on this one the defense bar is correct.  TDS attorneys really do have to worry about their next assignment, promotion, boss and their careers for that matter.  Zealous advocacy for your client doesn’t hurt you…zealous advocacy that makes the Army/Air Force/Navy/Marine Corps look bad?  Hmmm….

  5. Dew_Process says:

    It is simply another form of UCI, only directed at defense attorneys.  Sometimes there is an ethical duty for a DC to “set the record straight,” and thus if one feels that their career potential is going to be adversely affected by that zealous representation of their client, then they should withdraw as counsel.  See, e.g., Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991).
    Many military defense attorneys are remiss in their duties in not knowing what their respective service regulations say about “media relations” (most of which are either outright censorship or prior restraints).  If DC follow the “guidelines” for when something is considered “newsworthy” for the government, in 99.9% of those cases, it is equally newsworthy for the defense.  In the 0.1%, holding one’s tongue may indeed be the better tactic — but it is certainly not in most cases prohibited.
    I’m not making an ad hominem attack on Sinclair’s military DC, but there’s nothing that prohibits seeking PA “assistance” such as investigative assistance in a high profile case to protect one’s client – it’s not going to be granted in 99.9999999999%  of cases, but then DC can legally and ethically claim that the government’s complaints are self-induced.  Some years ago, I had the immense benefit in a very high profile case of having a detailed DC who had been a PAO before going to law school on the “funded legal” program.
    When Convening Authorities (looking for another star) start getting “bad press” nationally, strangely, the attitudes of TC and SJA’s become far more neutral versus adversarial.

  6. TC says:

    When would a DC have an ethical duty to set the record straight? I understand it might be a smart move tactically, but when would a DC ever be unethical, or how could they fail to meet professional standards, by not going to the media?

  7. Dew_Process says:

    TC – e.g. when the police hold a news conference and falsely state that Mr. Defendant “confessed” when he did not.  Keep in mind that not all jurisdictions have as liberal of a voir dire process as does the military.  In many federal courts, for example, Counsel can ask no questions – you submit your “proposed” questions to the Judge who may or may not ask them.  As the Court said in Gentile:
    An attorney’s duties do not begin inside the courtroom door. He or she cannot ignore the practical implications of a legal proceeding for the client. Just as an attorney may recommend a plea bargain or civil settlement to avoid the adverse consequences of a possible loss after trial, so too an attorney may take reasonable steps to defend a client’s reputation and reduce the adverse consequences of indictment, especially in the face of a prosecution deemed unjust or commenced with improper motives.

  8. Dwight Sullivan says:

    A defense counsel who thought it was in his or her client’s interest and consistent with the Rules of Profession Conduct to deal with the media would commit an ethical violation if he or she didn’t due to concern   that “[i]n two years, [his or her] next boss could be the Chief of Justice, SVP, or TC [he or she] made look bad with your press release.”

    Let’s look at the Army Rules of Professional Conduct, Army Regulation 27-26 (1 May 1992).  Here’s what Rule 5.4(e) says:  “Notwithstanding a lawyer’s status as a commissioned officer or Department of the Army civilian, a lawyer detailed or assigned to represent an individual soldier or employee of the Army is expected to exercise unfettered loyalty and professional independence during the representation consistent with these Rules and TO THE SAME EXTENT AS REQUIRED BY A LAWYER IN PRIVATE PRACTICE.”

    What a great statement — if a laywer is private practice is expected to do it, the detailed defense counsel must do it.  We don’t detail second-rate lawyers to our clients.  Sure, many times the military defense counsel will decline to deal with the media because the counsel determines it isn’t in the client’s interest to do so.  And perhaps on some occasions civilian counsel deal with the media in an effort to get their names circulating for rain making reasons rather than to promote the client’s interest.  But where it is in the client’s interest to interact with the media and where doing so is permitted by Rule 3.6, then a detailed defense counsel must do so and no one can stop him or her.

    Remember that the Supreme Court has held that just because a public defender is paid by the government doesn’t allow the government to control the publilc defender’s work product.  “Once a lawyer has undertaken the representation of an accused, the duties and obligations are the same whether the lawyer is privately retained, appointed, or serving in a legal aid or defender program.”  Polk County v. Dodson, 454 U.S. 312, 318 (1981).  See also Vermont v. Brillon, 129 S. Ct. 1283, 1290-91 (2009).  “Once a lawyer has undertaken the representation of an accused, the duties and obligations are the same whether the lawyer is privately retained, appointed, or serving in a legal aid or defender program.” Polk County, 454 U.S. at 318 (quoting ABA Standards for Criminal Justice 4-3.9 (2d ed. 1980)).  The Court continued:

    Within the context of our legal system, the duties of a defense lawyer are those of a personal counselor and advocate. It is often said that lawyers are “officers of the court.”  But the Courts of Appeals are agreed that a lawyer representing a client is not, by virtue of being an officer of the court, a state actor “under color of state law” within the meaning of §I983.  In our system a defense lawyer characteristically opposes the designated representatives of the State. The system assumes that adversarial testing will ultimately advance the public interest in truth and fairness. But it posits that a defense lawyer best serves the public, not by acting on behalf of the State or in concert with it, but rather by advancing “the undivided interests of his client.” This is essentially a private function, traditionally filled by retained counsel, for which state office and authority are not needed.

    Id. at 318-19 (footnotes omitted).

  9. John Harwood says:

    No one has mentioned then-Major Mori and his defense of Aussie David Hicks.  He was on TV in Australia more often some news anchormen.  And it worked – the public outcry over the case in Australia put pressure on the Aussie government to put pressure on the US government, and then Hicks got a time-served PTA at his military commission and a return to Aus.
    Of course, some folks surmise that Mori paid a career price for his very-public advocacy on behalf of Hicks.

  10. Lieber says:

    I completely agree as to our ethical duties as attorneys…but from what I’ve seen TDS judge advocates are people too.  And they’re fully aware that promotion boards may well not understand their ethical duties.  (Sidenote: I would suggest that our promotion and rating structures are actually violation of ABA standards of professional responsibility…insofar as we have non-lawyers making rating and promotion determinations as to lawyers.)

  11. Phil Cave says:

    Lieber, for the Navy it is different: JAGs are promoted off boards composed of JAGs.

  12. Outlaw Biker says:

    k fischer makes excellent points about priorities.  It’s pretty hard to ignore your own career.  But I have to stand with Dwight’s position.  Are we lawyers first or military officers first?  Of course we can say “both” when it doesn’t matter.  But when we have to make a choice, are we willing to put our clients ahead of our military careers?  Are we supposed to put them first, or should we balance the two to maximize our contributions over the long haul?  Even the appearance to the client that the JAG may be more interested in his or her own career over his interests is what has allowed those of us in the private sector to make a small fortune practicing military criminal defense law.  I can tell you that regardless of where you come down on this issue, the clients know, despite what you tell them, that your butt is more important to you than theirs.  That’s what causes them to turn to the internet to find who they believe will be truly in their corner.
    Further, our clients may be heading out of the service at the conclusion of our involvement in their case, but is the CA’s action as far as we can see?  If our clients have been trashed in the media by the government, how are they going to fare after they leave the service?  The attorney willing to fight for his or her client wherever required is the true champion of justice.  We consider whether they’ll have to register as sex offenders, but do we consider what has become of their reputations?

  13. Phil Cave says:

    See 0211
    All services ought to require that PAO’s commenting on military justice matters follow the lawyers obligations.
    Similarly NCIS, OSI, CGIS, CID, ought to be bound in the same way.
    Can’t seem to access the FBI manual on media relations.

  14. rob klant says:

    I never had any doubt as a military defenese counsel that I could deal with the media if necessary to fulfill my ethical duties to my client.
    But, as a practical matter, how would the various service regulations on releases of official information or contacts with the media enter into the equation? 
    Notwithstanding the duty to represent one’s client, I’ve thought that military defense counsel would still be bound to comply with reasonable administrative requirements governing release or risk committing a violation.
    For example, is there some provision of the Privacy Act which would permit a military defense counsel publicly to post official information about a victim/witness thath was obtained from federal law enforcement acting within the course of their duties?  Would it matter if the information were discovered by military defense counsel in the course of counsel’s official duties? 

  15. Lieber says:

    The fact of the matter is that I’ve seen any number of civilian defense counsel adapt proactive media strategies (admittedly in some cases that is probably mainly for fundraising purposes (i.e. Bradley Manning), a tactic unnecessary for TDS) but I’ve never seen TDS do it.  Now it may be that TDS counsel never ever have a case where a proactive media strategy would make sense…but I doubt it.

  16. Dew_Process says:

    RK – I’ve had that scenario.  After researching it, I concluded that complying completely with (in my case, the AF reg) constituted an impermissible “prior restraint” by requiring that as a DC I get prior approval of the “sum and substance” of my media release, so refused to comply with that.  I gave “notice” that I was having a press conference, invited the PAO to it and also copied them in on the press release. 
    With respect to the Privacy Act,the Act itself makes criminal various unathorized releases, so I don’t think it matters much whether you’re in uniform or not.  I think anything that’s “FOUO” falls within the prohibition, but if e.g., my investigator digs up dirt from public records, then that’s fair game.

  17. Bridget Wilson says:

    Among others, there are two common reasons that I am contacted by service members. First, they have the false conviction that their military defense counsel is in the pocket of the convening authority. Second, they have client fantasy that the media will interested and/or helpful in their case. Actually, my civilian clients also have that illusion. Clients often believe that the world will be outraged by the injustice done to them. Of course, that is rarely true. Even if media contact is possible, I tell clients that in most cases the media card is one you get to play once, unless you have a case as high profile as BG Sinclair’s case. Once that card is played, you are likely stuck with what comes out of the reporter’s mind, accurate or not.
    Most of my conversations with the media have been the reporter contacting me. If I choose to say anything at all, I speak in bumper sticker slogans. The press may not be your enemy, but may not be your friend.  BG Sinclair’s case may be another matter. As much as the concerns about the Privacy Act,  may be well taken, how often are you giving out truly private information in court-martial proceedings? I don’t worry about the press, just don’t see them as all that useful to the defense in most cases, distinguishing the extraordinary, Haditha, Sinclair, etc. Different analysis. May or may not and needs to be carefully done.
    It justifiably might lead a client to question the independence of the TDC when military counsel say that they cannot speak with the media for fear of some consequence to the attorney,

  18. stewie says:

    I had a reporter for the Army Times flirt with me as DC to try and get me to say bad stuff about the governtment counsel, which I refused to do.  My trust in reporters is rather low, so I think I’d have to be darn sure it was helpful to my client with little chance of being twisted before I used the press too much.  I get the obligation and agree with it, but don’t necessarily trust my abilities or lack of experience with the press, as I assume most military counsel don’t…nor do most of us trust the press.