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The Clean Team and the Stain of Torture

By Jack M. Balkin

Yesterday's Washington Post and today's New York Times both report that some of the evidence against the six Guantanamo defendants charged with perpetrating 9/11 comes from re-interviews by the FBI's "Clean Team" ? a group of investigators who interrogate without abusing or torturing the subjects. (The others, I guess, are the Unclean Team.) That finesses the awkwardness that might arise from needing to get tortured testimony admitted into evidence. (Quick recap: the Military Commissions Act makes evidence procured under torture inadmissible (10 U.S.C. 948r(c)), but allows in probative, reliable coerced evidence if the level of coercion is disputed (10 U.S.C. 948r(d)). In other words: you say that waterboarding, Cold Cell, Long Time Standing, intensive sleep deprivation, prolonged isolation, and whatever else the Unclean Team did are torture. But we, the government, say that they aren't. So the level of coercion is disputed, and therefore the evidence may be admissible.)

It's questionable whether the Clean Team reinterviews will suffice to sanitize this information. After people have been tortured at least once, and imprisoned for years since that time, just how reliable can information they give up in the Guantanamo interrogation cells possibly be, even if the new interrogators are polite, culturally sensitive, and keep their hands to themselves? Wouldn't it dawn on someone who has been tortured that unless he gives the same answers this time around, he might be tortured again? Isn't the situation so inherently coercive that the evidence has no credibility? There are some bells that can't be unrung, and the torture bell is surely one of them. Such evidence is inherently unreliable - just as unreliable as when it was tortured out of the witnesses.

But there's another issue worth flagging. Lawyers, including government lawyers, are bound by an ethics rule forbidding them from speaking with parties who have legal representation without obtaining consent of the party's lawyer. This is the "no-contact rule" in the ethics codes. Under existing law, contact forbidden to lawyers is forbidden to their agents and investigators as well. Rather clearly, the Clean Team were doing investigations on behalf of the prosecution, and in fact the Times story quotes a government official who confirms the role that prosecutors played in guiding the Clean Team.

All the Guantanamo detainees are represented by lawyers handling their habeas corpus and Detainee Treatment Act cases. And the Clean Team re-interrogations are poster children for exactly the evil that the no-contact rule was designed to remedy: getting a represented party to make admissions that he would never make if his lawyer had the opportunity to advise him.

Federal prosecutors have hated the no-contact rule for years, precisely because they want to question prisoners without their lawyers interfering. In the late 1980s, then-Attorney General Dick Thornburgh issued a memo exempting federal prosecutors from the no-contact rule, and Janet Reno expressly adopted his policy as a DOJ rule. But in 1998, Congress passed the McDade Amendment, which requires federal prosecutors to abide by state ethics rules, including the no-contact rule. (Rep. John McDade (R-Pa.) was acquitted in 1996 of conspiracy and racketeering charges after an eight-year investigation, and he sponsored the legislation to curb what he called "rampant" abuse by "overaggressive prosecutors.") Military lawyers aren't covered by the McDade Amendement, but their own ethics codes contain the no-contact rule, and require them to follow state bar rules.

The ABA's version of the no-contact rule reads: "In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order." (State and military rules are similar.)

In the Guantanamo cases, three questions occur. First, is the subject of the representation the same? The Clean Team wants witnesses to talk about 9/11 and who was involved; the habeas lawyers are challenging the legality of their imprisonment. These are not identical legal issues, but the overlap is obvious: both have to do with who the detainee is, who he knows, and what the nature of his involvement with Al Qaeda is, if any. It's hard to believe that the Clean Team interrogations are not about "the subject of the representation."

Second, are the prosecutors authorized by law to question represented persons without the consent of their lawyers? As far as I know, no such law exists (do readers have information to the contrary?) And third, were the Gitmo prosecutors authorized to send out the Clean Team by a court order of the military commissions? If so, has it been made public? Revealed to defense counsel? Was there an adversarial hearing over whether such a court order would be proper? I'm fairly confident that the answer to the last set of questions is no. Put it all together, and it looks like the activities of the Clean Team stem from unclean prosecution tactics.

In December, Charles Swift, one of Salim Hamdan's lawyers, asked the government how they could countenance violations of the no-contact rule, and got an amazing answer: the government does not consider the detainees' lawyers to actually represent them, because the habeas and DTA lawyers were not assigned by the military commissions Appointing Authority. In an e-mail to me, Swift posed the question this way: "When is an attorney not an attorney?" Answer: when the government wants to pretend that the attorney's client is unrepresented, in order to send the Clean Team in to get information that will avoid all the unpleasantness that torture raises in regimes that purport to respect the rule of law. (I discuss this issue in a paper, forthcoming in the Stanford Law Review, on ethical issues arising in Guantanamo detainee litigation. It's currently being posted on SSRN, and I will link to it in a subsequent blogpost.)

Admittedly, in the grand scheme of things prosecutorial violations of the no-contact rule don't have nearly the significance of all the other things wrong with Guantanamo and the military commissions. But the Clean Team and its investigations are part of something that goes much deeper than infractions of the ethics rules: dealing with tortured evidence in a legal system that purports to be civilized. Today's Washington Post has a powerful editorial on the subject. Citing research by occasional Balkinization blogger Dave Glazier on the history of military commissions, the editorial begins:

The defendants stood accused of savage acts, including mass murder. After
lengthy delay, the United States put them on trial by military commissions,
which did not include all of the procedural protections of courts-martial. All
were convicted, and most were sentenced to death.

But shortly after the trials, word began leaking out that much of the
information used to convict the defendants was obtained through coercive
methods, including torture. The outrage fueled by the atrocities soon turned
into national and international indignation at the treatment of the defendants
at the hands of the U.S. government. None of the defendants was executed, and
eventually all were released.

The episode took place in 1946, when the United States established military
commissions in Dachau to try 73 Nazi officers and soldiers accused of gunning
down more than 100 American prisoners during the Battle of the Bulge in
1944.

Like Lady Macbeth, the Clean Team is trying to scrub away a stain that won't come off: the stain of torture. For years, critics have predicted that - along with all its other evils - torture would make it harder to bring terrorist criminals to justice. Those chickens are now coming home to roost. Small wonder if prosecutors have to cheat on their professional ethics to try to make the stain go away.

Full post as published by Balkinization on February 13, 2008 (boomark / email).