Pleading Guilty at Guantanamo/Response to the ACLU

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     The ACLU's furious comments on my June 8th post about proceedings at Guantanamo refute an argument for allowing guilty pleas in capital cases that I did not make.  In fact, I share Denny LeBoeuf's evident abhorrence of a system that accepts guilty pleas from defendants after summarily detaining and torturing them, as I share her abhorrence of the death penalty in general.

     But I do think that cases like this present obvious quandries for defense attorneys, and I'm a little surprised by the rage I provoked in raising them.  As my friend, veteran criminal defense attorney Harvey Silverglate remarks, lawyers are bound to act in their client's best interests, which are normally determined by the client: "But when the lawyer has reason to believe that the client is not compos mentis (e.g., is clinically insane or has been driven to distraction by years of torture or isolation), or is otherwise not free to decide what is in his best interests (e.g., the client is being threatened by someone), then the lawyer is in the middle of a conundrum: Should the lawyer take the client at face value and follow the client's instructions, or should the lawyer, adjusting for the client's inability to assess and communicate his best interests, substitute his judgment for that of the client (and resign if the client insists)? Lawyers will disagree as to how to proceed."

I regard as equally uncontroversial my opinion that defense attorneys directly representing detainees are primarily bound to serve the detainees' interests, not the public interest in learning what a trial might reveal about the 9/11 attack or the government's use of torture.  I disagree with LeBoeuf that advocacy of this public interest in trials for alleged 9/ll co-conspirators is so easily reconciled with advocacy in the interest of detainees.   

I don't doubt LeBoeuf's integrity or her commitment to her clients, but in arguing for "our interest as a society" in trials as opposed to pleas for detainees, I do think her remarks to the New York Times inadvertently illustrate the dilemma sometimes facing advocacy groups that engage in direct representation of clients.  On occasion, the client's interest may demand that his or her lawyers present arguments or adopt tactics that conflict with group's ideals.  (I recall an attorney at a committee meeting of the ACLU of Massachusetts arguing against ACLU representation of a controversial client because if his case went to trial, his most effective defense might be one that the ACLU would be loathe to mount.)  

So I repeat: the interests of our society in trials and the interests of Guantanamo detainees may diverge.  Indeed, after spending years in detention and suffering torture, I wouldn't be surprised if at least some of the detainees, whether innocent or guilty, would agree. 

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional, and a past recipient of a Guggenheim Fellowship. More

Wendy Kaminer is a lawyer and social critic who has been a contributing editor of The Atlantic since 1991. She writes about law, liberty, feminism, religion and popular culture and has written eight books, including Worst InstinctsFree for All; Sleeping with Extra-Terrestrials; and I'm Dysfunctional, You're Dysfunctional. Kaminer worked as a staff attorney in the New York Legal Aid Society and in the New York City Mayor's Office and was awarded a Guggenheim Fellowship in 1993. She is a renowned contrarian who has tackled the issues of censorship and pornography, feminism, pop psychology, gender roles and identities, crime and the criminal-justice system, and gun control. Her articles and reviews have appeared in The Atlantic, The New York Times, The Wall Street Journal, Newsweek, The American Prospect, Dissent, The Nation, The Wilson Quarterly, Free Inquiry, and spiked-online.com. Her commentaries have aired on National Public Radio. She serves on the board of the Bill of Rights Defense Committee, the advisory boards of the Foundation for Individual Rights in Education and the Secular Coalition for America, and is a member of the Massachusetts State Advisory Committee to the U.S. Civil Rights Commission.

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