Lawyers often represent clients when the odds are long or a catastrophe likely. The facts might be harmful, the evidence overwhelming, or the law clearly on the side of the opponent. Still, we do the best we can. But what if the system is rigged? What if the system has the trappings of a fair fight, but is, in fact, skewed to one side and, by design, the lawyer cannot fully defend the client? What if the lawyer can only lend legitimacy to a process that at its core is biased, slanted in favor of the other side, or fundamentally unfair? Indeed what if the system is arranged to prevent the lawyer from zealously representing the client or compromises the lawyer's undivided loyalty to the client? Should lawyers refuse to participate in such systems, or should they, should we, still do the best we can? These questions were at the heart of a debate among civilian lawyers who considered whether to represent the enemy combatants facing trial by military commissions in Guantanamo Bay, Cuba. Most prominently, the National Association of Criminal Defense Lawyers advised its members that it would be unethical to represent an accused before the military commissions because the conditions imposed would make it impossible to provide adequate or ethical representation. This article argues in favor of the NACDL position and, in so doing, lays bare the complexity of the question of non-participation and the factors that can push in one direction or the other. Although the circumstances surrounding civilian participation in the military commission trials are quite unusual, this is not the first time that lawyers have had to face the dilemma of participation or non-participation, and historical examples are identified.
Mary M. Cheh, Should Lawyers Participate in Rigged Systems: The Case of the Military Commissions, 1 J. Nat'l Security L. & Pol'y 375 (2005).