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Legal Ethics and National Security Crises (Program)

Brigadier General Mark S. Martins, Office of Military Commissions, U.S. Department of Defense (US); Karen Greenberg, Fordham Law School (US); Joshua L. Dratel, Law Offices of Joshua L. Dratel, P.C. (US); Shane Kadidal, Center for Constitutional Rights (US); and Peter Margulies, Roger Williams University School of Law (US) (Moderator)

Legal Ethics and National Security Crises

Since September 11, 2001, the practice of lawyers before emergency tribunals has attracted extraordinary scrutiny.  Challenges confront lawyers who represent targets of government investigation, detention, and trial, as well as the lawyers who represent the government.  Lawyers who represent individuals ask if mere participation in emergency tribunals gives those proceedings a legitimacy they would otherwise lack.  On the other hand, taking that view can impair access to counsel for individuals who need representation. Lawyers in government face a distinct, but similarly formidable, set of challenges.  Those lawyers may regard tribunals such as military commissions as a reasonable, well-established response to armed conflict and other crises – consider the International Military Tribunal at Nuremberg after World War II. Government lawyers need to reconcile fairness with adversaries, including respect for attorney-client privilege and other accepted safeguards, with the government’s security needs.

The panel will explore these issues in the context of representation of Guantanamo detainees, service as a military prosecutor, challenges to U.S. no-fly lists, and the experience of India and the United Kingdom with emergency tribunals.

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