One Lawyer’s Courage

The New York Times ran an interesting story on February 6th, 2018 regarding the remarkable courage of a Navy lawyer who is charged with the responsibility of representing a notorious terrorist being held in Guantánamo Prison.

 

The situation is that the terrorist is being held in military confinement and is being tried in a military court. The military is seeking the death penalty. The rules of a military tribunal in cases involving the death penalty require that the defendant be represented by “learned counsel” who have tried capital cases before.

 

The lawyer the New York Times wrote about is Navy Lieutenant Alaric Piette. He was trained as a Navy Seal and then went to law school. He has been licensed for only 6 years and has never tried a death penalty case. He is, by any measure, including his own, not “learned counsel” and does not meet the qualifications required by the military to represent his client.

 

In the beginning of the proceeding, Lieutenant Piette was part of a multi-lawyer team and other members of the team were qualified. However, all of the lawyers other than Lieutenant Piette resigned after they learned that their confidential conversations with their client were being monitored. In fact, their meeting room was “bugged.” Although the lawyers objected to the Court, the Court ruled that the defendant’s conversations with his lawyers were not confidential and privileged. This ruling is completely contradictory to the law. The lawyers resigned in protest, leaving only Lieutenant Piette.

 

At this juncture, Lieutenant Piette was faced with an insoluble dilemma.  He could resign with the other lawyers, or he could continue to try to help his client despite the fact he was legally unqualified to represent the hated terrorist and incapable of single-handedly representing his client in one of the most complex, difficult, controversial criminal trials ever.

 

Lieutenant Piette first did what he should have – he objected based on his obvious lack of the required qualifications. To thwart his objection, the Judge ruled that “learned counsel” was required only “to the extent practicable”, and proceeded with the case over Lieutenant Piette’s well-taken objection. This ruling threw Lieutenant Piette back upon the horns of his dilemma.

 

As Lieutenant Piette saw it, “This is clearly a problem, because there is no way I qualify as learned counsel, but leaving the client without a lawyer to protect his rights could be worse. I don’t know if I’ve done the right thing, but I don’t think I really had a choice.” So, Lieutenant Piette attends the tribunal without objecting or asking questions and refuses to participate beyond being present. He does this because he is afraid that to do otherwise will give up his client’s one chance, and that is to appeal based upon the fact that he was denied “learned counsel” by the military Judge.

 

Clearly, Lieutenant Piette is in one of those “damned of you do, damned if you don’t” situations. He will be and already has been harshly criticized by some in the military including the Judge.

 

All lawyers owe a duty of loyalty to their client. But, over and above that, they owe a duty to uphold the integrity of the legal system itself and to their profession. Lieutenant Piette should be praised for doing the best he can to fulfill his responsibilities as a lawyer in the most trying circumstances a lawyer could ever imagine.

 

Photo Credit: Daniel Bone