Full Response Statement On The Denial Of Army Maj. Jason Wright's Course Deferral
Sunday, August 31, 2014
In 2011, the Army appointed Maj. Jason Wright to the defense team for one of the highest-profile defendants in the world: Khalid Sheikh Mohammed, the self-proclaimed mastermind behind the Sept. 11 attacks.
The Army ordered Wright to complete a required year-long graduate course, during which time he could not serve on Mohammed's defense team. Wright says that course is commonly deferred for those serving on capital cases, but this year his request for deferral was denied.
On Aug. 26, Wright resigned from the Army and left the defense team, saying his reassignment interfered with the defense team's ability to provide adequate counsel.
Wright told his story to Weekends on All Things Considered host Arun Rath. NPR reached out to the U.S. Army for a response on why Wright's deferral request was denied, and Army Spokesperson Wayne Hall provided this statement:
All military attorneys assigned to the Office of Military Commissions (OMC), defense or prosecution, are on notice that they may receive reassignment orders. It is common practice, particularly in protracted litigation, for military attorneys to withdraw from representation of both the United States and the defendant due to reassignment. It has been the Judge Advocate General's Corps' practice for the past 12 years to reassign members to and from the OMC and numerous Judge Advocates from both sides of the bar have been so reassigned. When reassignment occurs, the represented party is always assigned another competent and certified military counsel. Reassignment of OMC defense counsel is closely coordinated through the Chief Defense Counsel who communicates with the Learned Counsel.
The "graduate program" is an American Bar Association recognized graduate law school that confers a Master of Law (LL.M.) in Military Law. The course serves as the Advanced Officer Course for all Active Component (AC) Army Judge Advocates. Every active duty officer, regardless of the officer's branch (such as the Infantry branch, the Aviation Branch, the Military Intelligence Branch), is expected to attend an advanced course; this normally is when the officer is a senior Captain. An advanced course prepares military officers for greater responsibility within the hierarchy of the Army. During the judge advocate's advanced course, which confers an LL.M., the officer both delves into specialty areas of legal practice and trains to take on greater supervisory legal responsibilities. Not attending this course or perpetually delaying attendance would be detrimental to any officer's military career, limiting the availability of future assignments and making promotion unlikely.
The timing of graduate course attendance is important for an officer's professional development and promotion opportunity. The longer the graduate course is deferred, the greater the risk to the officer's career progression and potential promotion. Delay of more than a year puts an officer significantly behind his peers and at great professional disadvantage.
Deferral requests are initially reviewed by JAG Corps career managers in consultation with the officer and the officer's supervising attorney. The decision to approve a deferral request is made on a case-by-case basis, balancing the need for the deferral and the need of the officer. In MAJ Wright's case, The Judge Advocate General denied the second deferral request because a suitable and competent military defense attorney replacement was available, MAJ Wright was not the lead or sole counsel, and it ensured MAJ Wright remained professionally competent and competitive for promotion.
During the assignment process, MAJ Wright was offered the option of remaining on active duty as a mobilized reservist and not attending the graduate course, so that he could continue his representation of Mr. Mohammed if he felt, for example, his personal ethics demanded such.
The Army and its Judge Advocate General's Corps are always concerned with both justice and the appearance that justice is being served. The very foundation of our Army and its lawyers is to ensure justice is done. In this case, Major Wright's reassignment did not violate any precept of justice. The law is clear: the defendants—to include Mr. Mohammad—being tried by the Military Commissions have the right to qualified and certified military counsel. Therefore, upon Major Wright's resignation, the defendant, Mr. Mohammad, was immediately assigned a military defense counsel with military defense experience to join his defense team under the supervision of a lead "Learned Counsel." There are many reasons why a lawyer might need to terminate representation, and that termination of representation does not constitute an ethical impropriety so long as it is done properly and in accordance with the professional conduct rules and the rules of the relevant court. This is the case for the civilian bar, as well: attorneys change jobs, move to other positions, and in many cases, advance within their organization.
As discussed above, the reassignment of Major Jason Wright to receive a Master of Laws (LL.M.) was done with the best of faith to further his military career in the Judge Advocate General's Corps. In fact, every Judge Advocate continuously on active duty who is promoted to Lieutenant Colonel has attended this schooling and received their LL.M. The military by Federal statute has an an up-or-out promotion system; so ensuring an officer remains competitive for the next promotion is important to both the Army and the individual Judge Advocate's advancement.
It would be inappropriate for the Office of the Judge Advocate General to comment on the defense's concerns in an ongoing judicial proceeding. Like any military defense counsel, Major Wright had the right to raise these and all legal concerns to the presiding Trial Judge for the Military Commissions. It is the position of the Army that Major Wright's reassignment is in complete compliance with law and professional conduct rules and does not violate in any way Mr. Mohammad's Constitutional right to a defense.
The rules that govern professional conduct of military judge advocates, like Major Wright, are found in the Army Rules of Professional Conduct for Lawyers, Army Regulation 27-26. These Army rules are modeled on the American Bar Association (ABA) rules. The Army rule, like the ABA rule, that discusses the termination of representation is Rule 1.16 (Declining or Terminating Representation). This rule provides that a lawyer may seek withdrawal from representation of a client if "other good cause for withdrawal exists."
Under the provisions of Army Rule 1.2 (Scope of Representation), the objectives or scope of services provided by the lawyer may be limited by the law governing the conditions under which the lawyer's services are made available to the client. Formation of attorney-client relationships and representation of clients by Army lawyers is permissible only when authorized by competent authority, such as The Judge Advocate General as authorized by 10 USC Section 3037 and implementing regulations. Similarly, a lawyer appointed to represent a client shall continue such representation until relieved by competent authority. Thus, Army lawyers are subject to directions from officials ("competent authority") at higher levels within the Department. Accordingly, "good cause" to seek withdrawal exists when a lawyer changes duty stations or changes duties or separates from the Army. For example, a defense counsel has good cause to seek withdrawal when he or she is reassigned to duties, such as a prosecuting attorney within the military justice system (referred in the military as Trial Counsel). In such circumstances, the Judge Advocate by virtue of the reassignment to his or her new duties has been implicitly granted permission to withdraw from representation of his or her clients.
The ABA Rule 1.2 (Scope of Representation) does not contain the "competent authority" provisions. The ABA Model Rules of Professional Conduct were the basis for the Army Rules of Professional Conduct. Some changes to the ABA Rules and associated Comment were required to ensure that the Army Rules met the needs of Army practice, such as the need to periodically assign Army lawyers to different duty stations and different assignments to both meet the needs of the Army and ensure the professional growth and competency of Army lawyers. As noted above with the requirement to attend the LL.M. program as a Major, this also allows them to remain competitive with their peers for promotion.
Both Army Rule 1.16c and ABA Model Rule 1.16c provide that a lawyer shall continue representation notwithstanding good cause for terminating the representation when ordered to do so by a tribunal. In other words, the Trial Judge at the Military Commissions could have ordered MAJ Wright's continued representation once he gave them notice of his termination.
There is absolutely no Due Process violation for Mr. Mohammad by reassigning Major Wright to a new military duty station.