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Friday February 11th, 2011

Divided Loyalties: Professional Standards and Military Duty – Panel One

Moderator

Robert Strassfeld, Director, Institute for Global Security Law and Policy, Case Western Reserve University School of Law

Panelists

David Frakt, Barry University Law School, Orlando

Elizabeth Hillman, University of California, Hastings

Michael A. Newton, Vanderbilt University Law School

Darrel Vandeveld, Chief Public Defender, Erie County, Pennsylvania; Lt. Col. U.S. Army Reserves, former military prosecutor for Guantanamo Bay detainees

Friday February 11, 2011, 8:45 a.m.-5:00 p.m.

Sponsored by An Interdisciplinary Symposium funded in part by the Arthur W. Fiske Memorial Lectureship Fund at the Case Western Reserve University School of Law

Panel one examines the ethical, legal, and professional obligations of lawyers serving in the military.

There has always been some tension between the ethical, legal, and professional obligations of professionals and the requirements of military service. This tension has been increased by the War on Terror. Physicians, mental health professionals, lawyers, and law enforcement/corrections officers serving in the military have been placed in situations in which their professional ethics, obligations, and legal duties may contradict military necessity or directives, or even place the role of professional in direct conflict with the role of military personnel.

As the management of armed conflict, the law of war, and the professionalization of the military has increased, this tension has similarly increased. Military professionals have been asked to bring their expertise, skills, and professional talents to the prosecution of military action not just as military personnel but as doctors, mental health professionals, lawyers, and law enforcement/corrections officers. Doctors and mental health professionals are charged with supervising and controlling interrogations, lawyers are asked to provide legal opinions and advise on the treatment of prisoners, and law enforcement and corrections officers must guard and control prisoners. While performing these duties military necessity can impose conflicting duties and concerns. The need for information, validation, or security may require different loyalties and focus than the professional duty. The need for information about an upcoming attack that could save the lives of comrades may directly contradict the need for care or treatment of a prisoner.

This symposium brings together professionals, ethicists, theorists and practitioners from medicine, mental health care, the law, law enforcement, and the military to explore these complicated and timely issues in an open and frank discussion.

Additional Information About Our Guest…

Before joining the faculty in 1988, Robert Strassfeld clerked for Judge Harrison L. Winter of the U.S. Court of Appeals for the Fourth Circuit and then practiced for three years at the Washington, D.C. firm, Shea & Gardner. Professor Strassfeld teaches Torts, Federal Courts, Labor Law, and Legal History. He has published articles on theoretical aspects of causation in the George Washington and Fordham law reviews and on law and the Vietnam War in the Wisconsin, North Carolina, and Duke law reviews. He is coauthor of Understanding Labor Law. His current research includes continuing work on the legal history of the Vietnam War and a history of African American lawyers in Cleveland. He received his B.A. in 1976 (Wesleyan University), his M.A. in 1980 (Rochester), and his J.D. in 1984 (Virginia).

David J. R. Frakt is an Associate Professor of Law at the Barry University Dwayne O. Andreas School of Law in Orlando, Florida and a Lieutenant Colonel in the U.S. Air Force Judge Advocate General’s Corps Reserve. He earned his B.A., summa cum laude, from the University of California, Irvine and his J.D., cum laude, from Harvard Law School. After law school, he clerked for the Honorable Monroe G. McKay, former Chief Judge of the U.S. Court of Appeals for the 10th Circuit. He served on active duty with the U.S. Air Force Judge Advocate General’s Corps (JAG) (1995-2005). He was Director of the Criminal Law Practice Center at Western State University College of Law (May 2005 – July 2010). From April 2008 to August 2009, Professor Frakt took a military leave of absence from teaching to serve as lead defense counsel with the Office of Military Commissions, representing two detainees at Guantanamo facing war crimes and terrorism charges before the U.S. military commissions.

Professor Frakt has been frequently quoted in the national media and has been a guest on national television and radio. He has published widely, in scholarly and popular periodicals and online. Professor Frakt is a contributor to the ACLU National Security Project’s Torture Report and was featured in the book The Guantanamo Lawyers: Inside a Prison, Outside the Law. Professor Frakt teaching and scholarship areas are criminal law, criminal procedure, evidence, international war crimes and international humanitarian law.

Elizabeth L. Hillman (Ph.D., history, Yale University; J.D., Yale Law School) is Professor of Law at the University of California Hastings College of the Law in San Francisco, CA. Her work focuses on United States military law and history since the mid-20th century and the impact of gender and sexual norms on military culture. A veteran of the U.S. Air Force, she taught history at the Air Force Academy and at Yale University before joining the faculty at Rutgers University School of Law, Camden in 2000. She now teaches military law, constitutional law, legal history, and trusts & estates, and directs a constitutional literacy outreach program, at Hastings. Professor Hillman is the author of Defending America: Military Culture and the Cold War Court-Martial (Princeton University Press: 2005), co-author of Military Justice Cases and Materials (with Eugene R. Fidell & Dwight H. Sullivan, LexisNexis: 2007), and numerous articles and chapters. Her most recent work concerns sexual violence in the U.S. military and the legal history of American bombing.

Michael Newton came to Vanderbilt after serving in the Department of Law, U.S. Military Academy. He teaches international law and international criminal law. Prof. Newton has published over 60 articles, editorials, and book chapters. He co-authored Enemy of the State: The Trial and Execution of Saddam Hussein, which received the Book of the Year Award from the International Association of Penal Law in 2009. He is Senior Editor of the Terrorism International Case Law Reporter.

Prof. Newton negotiated the Elements of Crimes document for the International Criminal Court and coordinated the interface between the FBI and the ICTY while in Kosovo to do forensics fieldwork to support the Milosevic indictment. From 1999 to 2002, he served in the Office of War Crimes Issues, U.S. Department of State. After helping establish the Iraqi High Tribunal, he taught Iraqi jurists and was International Law Advisor to the Judicial Chambers (2006-07). He also was the U.S. representative on the U.N. Planning Mission for the Sierra Leone Special Court.

Prof. Newton served in uniform for more than 21 years. He earned his J.D. and L.LM. from University of Virginia School of Law, and a second L.LM from the Judge Advocate General’s School, where he was Professor of International and Operational Law (1996-99). A member of the International Institute of Humanitarian Law and the International Bar Association, he is a frequent commentator in the media.

Darrel J. Vandeveld is a lieutenant colonel in the United States Army Reserve, who served tours of active duty in Bosnia, Africa, Iraq and Afghanistan in the years following the 9-11 attacks on the U.S. In 2002, Mr. Vandeveld participated in the rendition of the so-called “Algerian Six” from Bosnia to Guantanamo; in 2008, a federal district court ordered five of the six released, following the U.S. Supreme Court’s seminal decision in Boumediene v. Bush, 553 U.S. 723, which granted Guantanamo detainees (the Algerian Six were the plaintiffs in the case) the right to habeas corpus.

In 2007, the Army called Mr. Vandeveld, an experienced prosecutor in civilian life, to serve as a prosecutor in the Guantanamo Military Commissions. In the course of gathering the evidence against Mohammed Jawad, accused of wounding two U.S. soldiers in a hand grenade attack when he was 15-years old, Mr. Vandeveld – who by this time had been convinced by his opposing counsel, Professor David Frakt, of the moral and legal bankruptcy of the Military Commissions – discovered a confession obtained through torture, two suicide attempts by the accused, abusive interrogations, and the withholding of exculpatory evidence from the defense. These experiences led Mr. Vandeveld to a crisis of conscience. After he announced his resignation, his commander ordered a psychiatric evaluation. Professor Frakt later obtained a dismissal of Jawad’s case, in part because of Mr. Vandeveld’s own testimony. He is now Erie County, Pennsylvania’s chief public defender. Mr. Vandeveld received both his undergraduate and law degrees from the University of California.