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Divided Loyalties: Professional Standards and Military Duty (Part 2)

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Date and time
Friday, February 11, 2011

Part Two Topic: 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 brought 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.

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 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 Tenth Circuit. From 1995 to 2005, he served on active duty with the U.S. Air Force Judge Advocate General's Corps (JAG) before transitioning to the Air Force Reserve and becoming a law professor. He was Director of the Criminal Law Practice Center at Western State University College of Law from May 2005 to July 2010. He has also been an adjunct professor at Georgetown University Law Center. 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. He was the first defense counsel to win the pretrial dismissal of all charges against his client, Mohammed Jawad, a juvenile from Afghanistan, and also won Mohammed's release through a habeas corpus petition in federal court. He was the sole defense counsel in one of the only two military commission trials completed during President Bush's tenure in office, representing Ali Hamza al Bahlul. Professor Frakt is a highly regarded expert in the field of international war crimes, military law and military commissions and has been frequently quoted in the national media, including in the *New York Times*, *Washington Post*, *Newsweek*, *Los Angeles Times*, *New York Review of Books*,* Wall Street Journal*, *USA Today*, *Miami Herald*, *The Nation* and the *Atlantic Monthly*. He has written widely in both scholarly and popular periodicals. His articles and letters have been published in the Washington Post, New York Review of Books, Harvard Human Rights Journal, American Journal of Criminal Law, and Florida State University Law Review, as well as online on Salon.com, CNN.com, Huffington Post, and truthout.org. He has been a repeat guest on MSNBC's Rachel Maddow Show, and on PRI's "The World" and recently debated terrorism issues on the “Intelligence Squared” Debate series, broadcast nationally on Bloomberg News and NPR. Professor Frakt is a frequent guest speaker at law schools, conferences and symposia. Recent speaking appearances include Harvard, Duke, UCLA, Case Western, Seton Hall, and NYU Law School. 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. His latest articles will be published in the *Duke Law Journal*, the* Case Western Reserve Journal of International Law* and the* Air Force Law Review*.
Elizabeth Hillman was born and raised in Pittsburgh, Pennsylvania. She attended Duke University on an Air Force ROTC scholarship, received a degree in electrical engineering, and served as a space operations officer and orbital analyst in Cheyenne Mountain Air Force Base, Colorado Springs. Before joining the Hastings faculty in 2007, she taught history at the U.S. Air Force Academy and law at the Rutgers University School of Law, Camden. She is a board member of the National Institute for Military Justice and legal co-director of the Palm Center, a public policy research institute at UCSB. She frequently lectures on U.S. military justice, policies, and culture, and her scholarship focuses on American military law and history since the mid-20th century. She is now studying the law and politics of strategic bombing and the scourge of military sexual violence. And she still roots for the Steelers.
Mike Newton is an expert on accountability and conduct of hostilities issues. Over the course of his career, he has published more than 70 articles and book chapters, as well as opinion pieces for the New York Times, International Herald Tribune and other papers. Professor Newton is a member of the International Institute of Humanitarian Law and the International Bar Association. At Vanderbilt, he developed and teaches the innovative International Law Practice Lab and develops externships and other educational opportunities for students interested in international legal issues. Professor Newton served on the American Society of International Law Task Force on U.S. Policy Toward the International Criminal Court and on an Experts Group in support of the Task Force on Genocide Prevention established by the U.S. Holocaust Memorial Museum and the U.S. Institute of Peace. He has supervised Vanderbilt law students working in support of the Public International Law Policy Group to advise the governments of Afghanistan, Kosovo, Sri Lanka and other nations. Professor Newton negotiated the Elements of Crimes; document for the International Criminal Court, and coordinated the interface between the FBI and the ICTY while deploying into Kosovo to do the forensics fieldwork in support of the Milosevic indictment. As the Senior Advisor to the United States Ambassador-at-Large for War Crimes Issues, U.S. Department of State, Professor Newton implemented a wide range of policy positions related to the law of armed conflict, including U.S. support to accountability mechanisms worldwide. He was the senior member of the team that taught international law to the first group of Iraqis who began to think about accountability mechanisms and a constitutional structure in November 2000. He subsequently assisted in drafting the Statute of the Iraqi High Tribunal, and served as International Law Advisor to the Judicial Chambers in 2006 and 2007. Professor Newton has taught Iraqi jurists on seven other occasions, both inside and outside Iraq and as part of the academic consortium he assists Vanderbilt students in providing substantive advice to the lawyers in Iraq. He served as the U.S. representative on the U.N. Planning Mission for the Sierra Leone Special Court, and was also a member of the Special Court academic consortium. From January 1999 to August 2000, he served in the Office of War Crimes Issues, U.S. Department of State. Professor Newton began his distinguished military career as an armor officer in the 4th Battalion, 68th Armor, Fort Carson, Colorado until his selection for the Judge Advocate General's Funded Legal Education Program. As an operational military attorney, he served with the United States Army Special Forces Command (Airborne), Fort Bragg, North Carolina in support of units participating in Desert Storm. Following duty as the Chief of Operational Law, he served as the Group Judge Advocate for the 7th Special Forces Group (Airborne). He deployed on Operation Provide Comfort to assist Kurdish civilians in Northern Iraq, as well as a number of other exercises and operations. From 1993-1995 he was reassigned as the Brigade Judge Advocate for the 194th Armored Brigade (Separate), during which time he organized and led the human rights and rules of engagement education for all Multinational Forces and International Police deploying into Haiti. He subsequently was appointed as a Professor of International and Operational Law at the Judge Advocate General's School, Charlottesville, Virginia from 1996-1999. He currently serves as senior editor of the *Terrorism International Case Law Reporter* series published annually by Oxford University Press.
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.