Defense Articles

Here is how our executive branch last week waged its legal war on terrorism against the detainees at Guantanamo Bay, Cuba. While federal lawyers and intelligence officials earnestly prepared behind the scenes to put on trial some of the major terror suspects, a skuzzy Pentagon lawyer was front and center on the radio attacking the motives and integrity and even the patriotism of detainee defense attorneys and the law firms that support them.

One hand of government prepares in secret for the upcoming battle by identifying workarounds to constitutional due process and the congressional mandate that information gleaned from torture may not be used in the military commissions that may be up and running this summer. The other hand of government works in broad daylight to undercut perceptions about the loyal opposition by suggesting that the law firms whose attorneys work for free on these detainee cases — it’s called pro bono work and it is the law’s highest calling — may be taking money from terrorists or other nefarious sources.

On Friday we learned from the New York Times that the “Bush administration has set up a secret war room in a Virginia suburb” so that government attorneys and military officials can sort through “classified files” containing among other things the “interrogation reports” of top-shelf detainees like Khalid Sheik Mohammed. Their goal is to prepare to try Mohammed and other high-level terror suspects (like fellow 9/11 planner Ramzi Binalshibh) under the Military Commissions Act of 2006, a new federal law that set the rules that govern how the men may be tried.

“Prosecutors could use hearsay evidence or second-hand testimony, but could not use information obtained under torture,” report the Times’ Neil Lewis and David Johnston. “Even so,” they add, “that would mean virtually any information obtained by the C.I.A would appear to be admissible because, under Justice Department legal opinions, none of the harsh techniques amounted to torture.” That’s certainly convenient in theory — we’ll see how viable it is in practice. Remember, the new Congress has the right to look anew at the Commissions Act and the federal courts have yet to resolve the new questions it raises.

If there is nothing surprising about a group of prosecutors preparing for trial — even the sort of one-sided terror mega-trial that U.S v. Mohammed would become — it is, as The Washington Post suggested Friday, downright shocking that a government attorney would denigrate the work of attorneys and their colleagues who have chosen to help men who sometimes quite literally have no one else on their side. The malfeasant culprit is a man named Charles “Cully” Stimson, deputy assistant secretary of defense for detainee affairs, and there is simply no excuse for the tone or the tenor of the remarks he made Thursday on Federal News Radio.

Usually, administration officials take pot shots at the detainees — calling them “killers,” for example, even when the vast majority of them are not. But Stimson took his shots at the powerful law firms that have allowed and in many cases encouraged their bright attorneys to represent the detainees. According to The Post, Stimson said: “when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms….”

Stimson also attacked the motives of the men and women, and their bosses, who have accomplished so much in defending the rights of the grim men in Guantanamo Bay. “Some will maintain that they are doing it out of the goodness of their heart, that they’re doing it pro bono, and I suspect they are; others are receiving monies from who knows where, and I’d be curious to have them explain that.” You don’t need to understand the rich history of pro bono work in this country to understand how odious Stimson’s remarks are, or how much of a threat they constitute to men and women of goodwill everywhere.

For the sake of argument, however, let’s look a bit at the American Bar Association’s Model Rules of Professional Conduct — guidelines for how lawyers ought to behave. Rule 6.1 “Voluntary Pro Bono Publico Service” states that “every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono… legal services per year and should “provide any additional services through delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights.” I can think of no other cause that better satisfies this solemn responsibility than providing legal help to the Gitmo detainees. Can you?

Now let’s spend a minute looking at Stimson’s responsibilities as a government lawyer or as a spokesman for federal attorneys. First, Rule 3.4 “Fairness to Opposing Party and Counsel” states that a lawyer “shall not… allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witnesses, the culpability of a civil litigant or the guilt or innocence of an accused.”

Lasar v. Ford Motor Co., - F. Supp. 2d -, No. CV 99-177-M-WNM, 2003 WL 29882 (D. Mont. Jan. 2, 2003).

A U.S. district court granted a mistrial and imposed sanctions against a defense attorney who used his opening statement to suggest that plaintiff might have been intoxicated at the time of his automobile accident.

Here, Lasar was injured when the 1986 Ford Ranger pickup truck he was driving rolled several times. He filed a products liability suit against Ford. The judge ruled there was no evidence to establish that plaintiff was intoxicated at the time of the accident, and excluded any evidence of his alcohol consumption from the trial.

In his opening statement, defendant’s lawyer told the jury that plaintiff and friends “spent the day playing pool, visiting some local establishments,” and that plaintiff “made the decision to drive himself home.” Plaintiff moved for a mistrial, arguing that defense counsel was suggesting that plaintiff’s injury was caused by alcohol use.

Granting the motion, the court said that defendant’s lawyer had set forth a series of facts in his statement from which the jury was expected to draw logical inferences. The statement that plaintiff had been playing pool and visiting “establishments” was clearly intended to suggest that he had been drinking at several bars. Had the attorney been referring to churches or restaurants, he would have said as much, the court said.

Similarly, the comment that plaintiff “made the decision to drive himself home” implies that plaintiff made a conscious decision to drive even though he knew he was intoxicated. There is no reason for using the phrase “made the decision” unless defense counsel was attempting to imply that plaintiff made an incorrect decision when he decided to drive home.

In a products liability case, the focus must be on the design of the product, not the conduct of the parties, the court said. Here, defendant not only failed to establish any causal link between the accident and any alcohol use by plaintiff, it admitted that it did not have any evidence that plaintiff was intoxicated. Defendant’s opening comments regarding alcohol show contempt for the court’s orders precluding any mention of alcohol use, the court concluded.

Accordingly, the court granted a mistrial, cited defense counsel for contempt of court, and sanctioned defense counsel and his client.

Plaintiff’s Counsel

*Patrick Ardis, Memphis, Tenn.

Paul Meismer, Missoula, Mont.

*Michael Weisman, Boston, Mass.

Nineteen-year-old Eagle Scout Gary Hirte admitted he murdered Glenn Kopitske, a 37-year-old gay Wisconsin man. But Hirte’s attorney told a jury in February that his client should not be held responsible for his actions: He did it only because he was crazy with rage and shame after the two had sex in Kopitske’s rural Winnebago County home in the summer of 2003.

Of course, the jury also heard how Hirte had returned to Kopitske’s home hours after the sexual encounter with a shotgun and a hunting knife, both of which he used in the killing. They heard how Hirte had bragged to friends about his deed, showing at least one of them the bloody knife and the victim’s car keys. They heard how he’d told a pal that he murdered Kopitske just to see what it was like to kill someone.

The jury rejected Hirte’s claim of temporary insanity and recommended he be sentenced to life in prison.

The “gay panic” defense fails more often than it succeeds, legal experts say, but it’s a defense strategy that continues to emerge in cases of violence against gay men and transgender women in jurisdictions across the nation. Now law-enforcement officials are banding together to fight back. In February more than 100 prosecutors, lawyers, and police officers met in Atlanta at a symposium titled “Defeating the Gay-Panic Defense,” billed as the nation’s first such gathering.

The strategy session was the brainchild of Atlanta district attorney Paul Howard. Two years ago Howard had watched as a Georgia jury acquitted a man who had confessed to beating to death a gay lawyer who the defendant claimed had performed oral sex on him at gunpoint. The victim had worked for Howard, who says the experience of seeing his employee’s killer walk out of the courtroom a free man was “galvanizing. There were a lot of people in my office who were upset by this, and I told them, ‘Let’s do something constructive.’”

Long a mainstay of lawyers defending the killers of gay men, the gay panic defense hit the national news in 1999. “What really brought this to the forefront was the Matthew Shepard case,” Howard says. During the trial of Aaron McKinney, who admitted to fatally beating the 21-year-old gay college student near Laramie, Wyo., in October 1998, defense attorneys told the judge they would argue that McKinney killed Shepard in a blind fury after a sexual advance by Shepard had brought out demons from the killer’s troubled sexual past. But district judge Barton Voigt “called it a gay panic defense and said it couldn’t be brought in,” Howard recounts. The judge likened the defense strategy to temporary insanity or a diminished-capacity defense, both of which are prohibited by Wyoming law.

Still, McKinney’s lawyer was allowed to raise the issue during his opening statement, and the tactic may have helped win McKinney a conviction for second-degree murder instead of first-degree premeditated murder. (McKinney was also convicted of first-degree felony murder, which unlike first-degree premeditated murder does not require proof of intent to kill, just to commit a related felony, in this case robbery and kidnapping.)

Since that trial, legal experts say, judges across the nation have become more reluctant to allow the gay panic defense, often ruling that testimony about the victim’s sexual orientation is inadmissible. Judges are particularly skeptical when attorneys complain during an appeal that the gay panic defense should have been allowed at the original trial, says New York Law School professor Arthur Leonard, who has tracked gay issues in the law for more than 20 years. “Appellate judges tend to be strongly averse to upsetting a conviction based on [gay panic],” he says. Judges typically rule “that murder is a disproportionate response to an unwelcome sexual solicitation or invitation.”

But what seems a disproportionate response to some may still strike juries as partial justification for the brutal murder of gay men. In Kentucky, 23-year-old Josh Cottrell admitted beating to death Guinn “Richie” Phillips, a 36-year-old gay Rineyville man, and then stuffing his body into a suitcase. Taking the stand during his trial, Cottrell argued that he killed Phillips in self-defense after the older man attempted to force him to perform oral sex in a motel room. Beating Phillips unconscious, he claimed, was the only way to avoid unwanted gay sex. What else could he do?

Although they recommended a sentence of 30 years, the jury declined to find Cottrell guilty of murder. They convicted him instead of second-degree manslaughter in a case that could have brought the death penalty. On March 1 a judge sentenced Cottrell, a previously convicted felon, to 20 years in prison. He could be eligible for parole in about two years.

Why did the jury not return a murder conviction? “I think they were looking at my brother being a homosexual when they made their decision to pick the lesser charge,” Phillips’s brother, Greg, told a local newspaper.

The American Bar Association (ABA) Model Rules of Professional Conduct (Model Rules) create an obligation for lawyers to disclose to the tribunal when perjured testimony has been or may be introduced.1 The problems of identifying such perjury and the obligations that arise from Model Rule 3.3 are varied and complex.2 Client perjury puts the criminal defense attorney in an unenviable position. It creates a tension between the duty of zealous advocacy and the duty of candor toward the court.3

Dean Monroe Freedman famously presents this problem in terms of the “perjury trilemma.”4 Dean Freedman notes that lawyers face three obligations in performance. The first two stem from the important, almost sacred, attorneyclient relationship. First, there is the duty to investigate a client’s case. As Dean Freedman argues, “in order to give clients the effective assistance of counsel to which they are entitled, lawyers are required to seek out all relevant facts.”5 Second, there is the obligation of zealous client advocacy.6 These are potentially at odds with the third duty, the obligation of lawyers to the court. Lawyers are officers of the court and hold certain responsibilities as such.7 They have specific requirements imposed upon them in such a capacity that cannot be forsaken.8

disclosure of potential client perjury threatens the relationship between an individual accused of a crime and their one and only representative in the criminal justice system. “[T]o convert the defendant’s only champion into yet another member of the state’s legions seems an unnecessary and offensive step.”9 Dean Freedman argues that only two of these three obligations can be met at any given time.10 So which of the three should go? In our adversarial system, the relationship between a criminal defense attorney and her client is special. The first and second obligations are essential for zealous advocacy. 11 The third, however, is essential for lawyers as participants in the judicial system as a whole.12 This creates a complicated and difficult situation for a criminal defendant attorney.

This Note will discuss some of the varied commentary on Model Rule 3.3 in light of the perjury trilemma. It presents the key issues at stake for criminal defense attorneys facing prospective client perjury. Part I will discuss the constitutional questions surrounding the issue of prospective client perjury faced by the criminal defense attorney. The question of whether an attorney has violated the tenets of the Model Rules turns, generally, on two issues: what is “knowingly” and what is “material.” Part II of this Note will discuss the knowledge requirement of Model Rule 3.3, arguing that the ABA and the courts should adopt the most stringent standard for knowledge: that a criminal defense attorney must have proof beyond a reasonable doubt before going to the drastic step of disclosure to the tribunal. This will preserve the constitutional rights of criminal defendants and maintain the sanctity of the attorney-client relationship. Part III will discuss the materiality requirement of Model Rule 3.3, arguing that materiality of a disputed fact is an important consideration in a lawyer’s individual determination of her obligations under Model Rule 3.3. Finally, Part IV will discuss what options are available to attorneys who may find themselves facing potential client perjury. The Model Rules should list the available possibilities, relying on the lawyer’s judgment to determine what is best for the client.

I. CONSTITUTIONAL DUTIES OF CRIMINAL DEFENSE ATTORNEYS

The interaction of a defendant’s constitutional rights with the responsibilities of his lawyer to avoid presenting false evidence or making material misstatements of fact13 forms the basis of this Note; namely, what does a lawyer do when she believes that her client may commit perjury at his criminal trial? As discussed below, this question has both a constitutional and an ethical component. The constitutional question is whether the actions an attorney takes will deprive her client of either effective assistance of counsel or due process of law.14 State laws regarding the professional conduct of attorneys form the ethical component of the criminal defendant perjury problem.

The issue itself has yielded a multiplicity of approaches and decisions in the last quarter-century, but none has provided a definitive answer on the topic.20 The thorniness of the question should not, however, prevent its careful study and a deliberative approach to the topic. When do the actions of an attorney who acts upon the potential perjury of her criminal defendant client violate the client’s federal constitutional rights?

right to counsel27 have become enforceable against the states. In addition, the Supreme Court has recognized certain other rights as corollary to and emanating from those granted by the Fifth and Sixth Amendment, including the right of a criminal defendant to testify in his own defense.28

In Nix v. Whiteside, the Court addressed the question of whether a lawyer’s refusal to allow his client to perjure himself was ineffective assistance of counsel.29 In Nix, the defendant was charged with murder and claimed self-defense.30 The defendant, in his first interview with counsel, said that he did not see a gun in the decedent’s hand but believed that there was one.31 The defendant repeated this story until just before trial, when he first claimed that he in fact saw something “metallic.”32 After his counsel inquired about this change, he responded that “[i]f I don’t say I saw a gun, I’m dead.”33 Counsel then told the defendant that if the defendant testified about seeing something metallic, counsel would inform the court of the perjury and testify against the defendant as a rebuttal witness.34 The defendant then testified that he did not see a gun in the decedent’s hand, and he was convicted.35 He challenged his conviction on the grounds that his lawyer’s threats constituted ineffective assistance of counsel in that they deprived him of a fair trial.36 The Eighth Circuit Court of Appeals vacated the defendant’s conviction on the grounds that the attorney’s “threatened violation of client confidences breached the standards of effective representation.”37 The Supreme Court reversed, holding, among extremely broad dicta about the values of professional responsibilities and the justice system, that the defendant could not claim ineffective assistance because he had “no ‘right’ to insist on counsel’s assistance or silence” in the commission of perjury.

President Bush yesterday stood by his embattled friend, Attorney General Alberto R. Gonzales , defying the broad bipartisan consensus emerging in Washington after this week’s Senate hearing that Gonzales has so badly damaged his own credibility that he should resign.

Bush expressed “full confidence” in Gonzales through a spokeswoman and praised his “fantastic” service, in hopes of quashing speculation that the attorney general would be pushed out. But a wide array of Republicans described Gonzales with phrases such as “dead man walking,” and even some White House aides privately voiced hope that he will step down on his own.

The continuing erosion of Republican support suggested that Gonzales lost ground during a day of often-hostile questioning by the Senate Judiciary Committee , rather than repairing the damage caused by the dismissal of eight U.S. attorneys. Nearly every committee Republican appeared skeptical of Gonzales’s handling of the firings and their aftermath. Telephone calls yesterday to dozens of GOP lawmakers, lobbyists, and current and former Bush administration officials found almost no support for the attorney general.

“Congressional confidence in his ability has eroded severely,” said Rep. Adam H. Putnam ( Fla. ), the third-ranking House Republican leader, who yesterday became the latest to call for Gonzales’s resignation. “There is widespread concern among my colleagues about the leadership shown by the attorney general. . . . This has now reached the point where it’s larger than any one man.”

Sen. Jeff Sessions (R-Ala.), a Judiciary Committee member, said Gonzales should “have a frank discussion with the White House,” adding: “If he and the president decide that he cannot be an effective leader moving forward, then he should resign. As he said during the hearing, ‘It’s not about Al Gonzales.’ The bottom line is that he must do what is in the best interest of the Department of Justice.”

Bush traditionally has bristled at pressure to dismiss advisers under fire, particularly those close to him, such as Gonzales, a longtime confidant from Texas . When he has eased out top officials, he has usually dictated the timing so as not to appear to be caving in to critics. Giving in, he has reasoned, would only embolden his foes to seek more scalps.

But in this case, according to Republican strategists, Bush faces the choice of leaving in place a law enforcement chief who has undermined his effectiveness in his department and on Capitol Hill , or reversing gears in the coming days and weeks if the political situation continues to deteriorate.

“Everybody at the White House . . . all think he needs to go, but the president doesn’t,” said a Republican who consulted the Bush team yesterday. Another White House ally said Bush and Gonzales are ignoring reality: “They’re the only two people on the planet Earth who don’t see it.” A third Republican intimately familiar with sentiment inside the White House said the hope is that Gonzales will leave on his own. “At some point, he’ll figure out that it’s not a sustainable situation,” the Republican said.

Gonzales gave no indication that he sees it that way. After weeks of seclusion to prepare for Thursday’s testimony, he tried to return to a normal routine, presiding over an afternoon awards ceremony for National Crime Victims’ Rights Week.

“I am humbled when I see people who have suffered so much able to stand up and take action,” Gonzales told victims’ advocates. “It makes me even more determined to do whatever I can, too.”

Gonzales spoke yesterday with about eight GOP lawmakers, including Sens. Arlen Specter ( Pa. ) and John Cornyn (Tex.), according to a Justice official, who said the “calls went well.”

“The attorney general told them that he heard them loud and clear and is committed to building a strong relationship with Congress,” said the official, who would discuss internal department issues only on the condition of anonymity.

The administration sent other signals that Gonzales will be around for a while. The White House announced that he will join two other Cabinet members in helping colleges review questions raised by the massacre at Virginia Tech . And the Justice Department scheduled a news conference Monday on identity theft.

“I can understand there are some people who still don’t want to support the attorney general. That is their right,” said White House spokeswoman Dana Perino . “But he has done a fantastic job at the Department of Justice. He is our number one crime fighter. He has done so much to help keep this country safe from terrorists.”

A few others jumped to Gonzales’s defense. “Based on what I know, this doesn’t appear to be a situation where there’s anything unlawful or improper,” said Helgi C. Walker, a former aide. “I’m afraid it’s just motivated by personal feelings, which is too bad because he’s a great man who has accomplished a great deal.”

The Deacons for Defense: Armed Resistance and the Civil Rights Movement. By Lance Hill (North Carolina: University of North Carolina Press, 2004. x plus 363 pp.).

In his Deacons for Defense, Lance Hill directs long overdue attention to the Deacons for Defense (DFD) and what he rightly calls, “The Myth of Nonviolence.” Using an impressive array of sources including: archival materials, government documents, FBI files and a substantial body of oral history, Hill argues “that black collective force did not simply enhance the bargaining power of moderates; it was the source of their power.” (1) Even the limited success of civil rights organizations such as SNCC, CORE, the NAACP or the SCLC depended upon the threat of collective black violence in the form of Malcolm X, urban rebellions or the DFD. As one of African Americans’ most successful, if least remembered, indigenous working class political movements in the South, the significance of the Deacons for Defense rested not only in their advocacy of armed self defense, but also in the ideological challenge they represented for middle class black leadership.

The Deacons were organized in Jonesboro, Louisiana in 1964 by local Blacks to protect the larger community and civil rights activists from the Ku Klux Klan and other vigilantes. However, they also represented, “a growing disillusionment of working-class blacks with the pacifistic, legalistic, and legislative strategies proffered by national organizations.” (2) The Deacons often clashed with middle class black leadership as well as the Klan. Considering their rapid expansion from Jonesboro to Bogalusa to an organization with twenty-one chapters and a national profile, Hill rightly argues that the platform of armed self-defense held deep resonance in working-class black communities throughout the nation. Despite public perception to contrary the Deacons were “not ideologues or revolutionaries” as much as they were pragmatic reformists. Hill asserts, “They were simply hardworking men,–barbers, mill hands, factory workers, church deacons–who wanted nothing more than quality and justice within the framework of the traditional American dream.” (217) Though the history of the Deacons was “purposefully forgotten” due to their stance on self-defense, their efforts resulted in material gains for rural blacks in Louisiana and Mississippi and neutralized the impact of the Klan; and much like the “New Negro” movement of the 1920’s the Deacons helped usher in a new era where fear and passivity were replaced by dignity, manhood and a new sense of self-determination. (3)

While Deacons for Defense provides a powerful antidote to the “Myth of Nonviolence,” Hill perpetuates other no less enduring ‘myths” of what constitutes a political movement as well as of the overall goals of modern civil rights movements. Hill acknowledges African Americans’ prior use of armed self-defense, but he dismisses it as a genuine form of political resistance saying:

But individual acts of self-defense did not in themselves constitute a
sign of militancy or a leap of consciousness. Physically defending
oneself can be motivated by nothing more than common sense and the
instinct to survive. Armed resistance had no political significance
until it became collective and public and openly challenged authority
and white terror. (4)

For Hill the Deacons were political because they were collective, public and sought to expand organizationally. (5) By privileging the “official transcript” of resistance, he ignores scholarship on everyday forms of resistance. (6) As Kelley notes in his Race Rebels, infrapolitics and organized resistance “are two sides of the same coin that make up the history of working class resistance.” (7) Not only does the accumulation of individual acts of resistance shape the nature of power, Kelley’s assertion that one way to conceptualize the modern civil rights movement as “a public declaration of a hidden transcript; a direct challenge to Jim Crowism by people who had heretofore resisted quietly” holds particular resonance for the emergence of the DFD in 1964. (8) By placing the Deacons and armed resistance in what Hunter termed “an arsenal of everyday tactics of resistance,” the linkages between African Americans’ belief in self-defense or the emergence of collective self-defense in instances such as the Tulsa Riot of 1921, offer a more nuanced view of the DFD as well as of the meaning of self-defense in the daily lives of African Americans. Perhaps then the Deacons were organized less as a reaction to rising Klan violence and the lack of enforcement of the Civil Rights Act of 1964, than as an outgrowth of long-term strategies of African American resistance.

Not only does Hill fail to challenge “myths of the political” he also reinforces the “myth” that the modern civil rights movement held a “singular obsession with civic equality.” (9) The notion that the nonviolent movement “deflected attention from economic and social forces that reproduced inequality and racism–for example, discrimination in employment, housing, and education …” perpetuates a “myth” no less problematic than the “myth of nonviolence.” As early as 1944, Rayford Logan’s “What the Negro Wants” listed “equality of opportunity” and “equal pay for equal work” along with suffrage, an end to segregation, and human dignity among his prerequisites for first-class citizenship. (10) Similarly, the Montgomery Improvement Association demanded jobs and respect as well as an end to segregation, and even a cursory glance that the placards held during the 1963 March on Washington reveals that African Americans envisioned housing, full employment, an end to police brutality as well as civil equality as fundamental aspects of freedom.

The church and the market; a Catholic defense of the free economy.

Woods, Thomas E. (Studies in ethics and economics)

Lexington Books, [c]2005

239 p.

$19.95 (pa)

In the eternal war of capitalism and the free market–the same thing to him–against Marxism, socialism, and the state, says Woods, Catholics have misunderstood their beliefs and come out on the wrong side. He looks at money and banking, the economics and morality of foreign aid, answering the distributist critique, and other features. A typical argument is that workers are insecure in their jobs because of technological improvements.

“These laws have been with us for centuries; how can you doubt them?” (1)

I. Introduction to United States Employment Systems

Hypothetically Speaking

Federal employment systems must evolve to remain relevant, (2) yet a virtually inevitable consequence of evolution is complexity. When the U.S. Secretary of Defense noted that, “We have complaints from managers that they have to manage over several different personnel systems,” (3) he had identified one such complexity. Indeed, over the past half-century, Department of Defense (DOD) personnel systems overseas have developed their own intricate challenges. These challenges often involve citizenship issues.

A significant part of the DOD civilian workforce is employed in Europe. (4) Within Europe, the majority is employed in Germany. Focusing on the U.S. Army in Germany, this article examines the sources, impact, and occasionally incongruous consequences of citizenship on DOD employment of civilians overseas. In doing so, this article makes periodic reference to the following hypothetical which illustrates some common, recurring issues that invariably vex even seasoned labor and employment law practitioners abroad:

Mr. G. S. Wannabe is a U.S. citizen who has been living in Germany for years with no affiliation to the U.S. forces stationed there. One day, he applies for a local, appropriated fund (APF) job with the U.S. Army. The Army civilian personnel advisory center rejects his application because he is ordinarily residents and, in their words, cannot be paid in dollars. They also reject his later applications for APF positions under Euro-paid, local national (LN) conditions, so he files a national origin discrimination complaint against them. The Army eventually hires him into a nonappropriated fund (NAF) job under LN conditions. In this position, Mr. Wannabe meets a German citizen who also works for the Army, but as an APF (LN) employee. They marry and she acquires U.S. citizenship. At her citizenship party, Ms. Wannabe learns that the Classification Act (6) now forces her out of her job. She is terminated and tries to file a discrimination complaint, but the agency tells her she cannot. She then sues in German labor court, prevails, and the Army settles her case. Meanwhile, Mr. Wannabe faces a reduction in force (RIF). When he isn’t placed into a vacant, APF (LN) job in his field, he tries to add a reprisal allegation to his pending discrimination complaint, but the agency informs him that he cannot file one. He, too, sues in German labor court, challenging the propriety of the separation procedures, and is reinstated even though he had qualified for no jobs at the time of his separation.

How can any of this happen? The Classification Act is cited routinely as the culprit in denying such employment, but does it really do any of this and, if so, how? To be certain, not all of the hypothetical’s circumstances appear in a single case, and this article is by no means intended as a comprehensive discourse on all aspects of these scenarios, but effectively answering these basic questions can affect the outcome of recurring employment eligibility determinations, discrimination complaints, removals, and RIF actions. Before answering these questions, however, it would be helpful to refresh military practitioners’ understanding of how the civil service and foreign national employment systems operate–particularly their limitations under statutory i employment, classification, and pay systems.

What Makes a Civil Servant?

Federal employment law stretches back to the creation of the Departments of State, Treasury, and War in 1789. (7) The escalating complexity of Government functions, and the need for similar federal jobs to have standardized performance requirements and pay, led to a continuum of legislative changes. The Civil Service Reform Act of 1978 (CSRA), (8) inter alia, replaced an archaic Civil Service Commission with the Office of Personnel Management (OPM) (9) to oversee federal human resources. Congress, the President, and the OPM are the principal authorities behind today’s civil service.

Metaphorically, perhaps, it should not take an “Act of Congress” to make a civil servant, but in reality, many statutes and rules affect civil service operations.. All aspiring civil servants must meet three initial requirements for eligibility. (10) A citizenship requirement is not among them, but it rapidly enters the maze of laws, treaties, agreements, executive orders, and regulations that restrict access to many federal jobs. Citizenship issues in federal employment are as much matters of fiscal law, as they are of international, administrative, immigration, or employment law. Congressional acts establish the basic systems of federal employment and govern the classification and pay of their respective employees. (11) Separate statutes are required to annually fund those systems. (12) Congress gave the President authority to regulate executive branch employees, and delegated broad rule-making power, subject to his direction, to the OPM, (13) which exercises its authority primarily in the Code of Federal Regulations (C.F.R.). (14) Among its duties, the OPM establishes government-wide classification standards placing civil service positions in classes and setting pay grades with fixed rates.

The Defense Acquisition Regulations System (DARS) Directorate launched the first phase of Procedures, Guidance and Information (PGI), enabling the Department of Defense to more rapidly communicate internal administrative and procedural information to the acquisition workforce. As an online resource, PGI serves as a companion to the Defense Federal Acquisition Regulation Supplement (DFARS) to help acquisition professionals more effectively and efficiently do their jobs. Further, PGI will rapidly assist the acquisition community by providing DoD internal procedures and other information not requiring implementation in the formal regulation.

[ILLUSTRATION OMITTED]

“The PGI site was actually born out of an initiative to redefine and better focus the content of DFARS,” says Ron Poussard, deputy director of DARS. “However, it has really evolved into a solution for rapidly communicating DoD policy and guidance.”

Historically, DFARS contained both mandatory and non-mandatory acquisition procedures, guidelines, and best practices. DoD recently decided the DFARS should focus only on:

* requirements of law

* DoD-wide policies

* delegations of Federal Acquisition Regulation (FAR) authorities

* deviations from FAR requirements and policies

* procedures having a significant effect beyond the internal operation of DoD

* procedures having a significant impact on the public.

PGI Released in Two Phases

PGI will be fully implemented in two phases. The first phase primarily encompasses the non-regulatory coverage removed from the DFARS. In the future, DARS plans to rewrite PGI in non-regulatory language and to create additional content on specific topics of interest to users. The second phase adds:

* training resources

* supplemental background

* reference information to the Web site.

September 11 put a spotlight on job prospects in the defense industry. Applications surged from network engineers and embedded systems programmers looking to bounce back from layoffs or contribute to the fight against terrorism.

What does it take to break into the industry? Do you need a security clearance to jump from dotcom to defense? Here’s our guide for anyone considering employment in this sector.

Understanding Security Clearances

Scan the job listings for defense-related jobs, and you’ll realize these positions often require security clearances. If you’ve got a clearance or had one in recent years, you’re ahead of the game. “The critical need is for people who have had clearances,” says David Tittle, president of Paul-Tittle Search Group, a search firm in the Washington, DC, area.

Receiving a clearance can take a few months to a year or longer. The factors involved include:

The number of government agencies involved. Whether it is a “secret” or a “top secret” clearance. The specifics of the individual’s background.

A lower-level clearance might entail a relatively simple background check, according to Phil Preston, senior vice president of staffing firm Comforce Corp. But work on weapons systems may require a “top secret” clearance. Such clearances take more time to obtain and also involve investigators delving into all areas of the individual’s life, interviews with neighbors and friends, and even a polygraph test. “They know more about you than you know yourself,” Preston says.

No Clearance?

Lack of clearance shouldn’t stop you from seeking a job in the defense industry. “People should not be discouraged who may not have had a security clearance,” says Michael Patrick, director of workforce recruitment and planning for Northrop Grumman Information Technology, where 60 percent of the positions require some form of clearance. The company plans to hire more than 4,000 individuals within the next year. “Managers tend to prefer a qualified person who already has the clearance,” says Patrick, “but people without the clearances certainly are not excluded.”

The company may hire you without a clearance, begin the clearance process and delay your start date. “We can extend offers and commit to a start date that is several months out,” says Patrick. “That’s a cost-effective way to do it.” Companies also hire the individual and have him work on another project until the clearance is processed.

“Be persistent and perhaps a little flexible,” Patrick suggests.

Process Is Paramount

Don’t expect anything close to the ad-hoc attitude toward project development you may have seen in other sectors. While the technologies may be the same, attention to process is key. The industry seeks disciplined, detail-oriented workers. “It helps if they’ve been on large, complex projects,” says Tittle.

“Once you’re in, the software development cycle is extremely process-oriented,” says Preston. Employers may seek individuals with expertise in concepts such as Capability Maturity Models (CMM), an area pioneered by the Software Engineering Institute at Carnegie Mellon University. For government-related contracts, the process is tracked at every stage, with careful accounting of how workers spend their time. “Renegade software developers don’t really adapt well,” says Preston. “The dotcommers tend not to be attracted to it and don’t have the outlook on the development process to make a successful transition.”

Caveats?

Disciplined workers thrive in the defense industry, but it’s not for everyone. If you’re seeking sudden riches and stock options, the defense industry probably isn’t the place for you.

Defense work doesn’t take place everywhere. Unless you’re in the Washington, DC, area, California, the Southwest or a few other regions, you’ll have trouble finding work.

Once you’re in the industry, be prepared to move — from company to company and city to city — as the contracts and companies change. “The vast majority of technologists that I see in the defense industry move on a fairly regular basis, like every three or four years,” Preston says.

Individuals with a military background may have an easier time finding work. However, foreign citizens may be excluded altogether as many defense jobs require US citizenship.

Leading-Edge Technology

Defense projects may take a while, but the technologies involved are often leading edge. Right now, interoperability is a central goal, with projects aimed at connecting information from disparate agencies, says Tittle. And weapons systems often lead technological development. “Technology is embedded everywhere, right into the ordnance that flies into the enemy building,” says Preston.

“The programs are truly fascinating and are directly related to protecting our national security,” notes Preston. “There’s just a feeling of pride when you’re part of those kinds of programs.”