Brian H. Potts
Cite as 7 Cal. Crim. Law Rev. 2
Pincite using paragraph numbers,
e.g. 7 Cal. Crim. Law Rev. 2, ¶11
United States and its citizenry rely on prosecutors to adhere to ethical
standards and to behave professionally when dealing with matters the requisite
standards do not address.
Because courts and disciplinary agencies are generally unfamiliar with
most prosecutorial activity, society inevitably must rely on their
self-regulation and enforcement.
Although U.S. citizens do have confidence in prosecutors’ general
terrorist defectors and informants (hereinafter “terrorism informants”) may
Over the last few decades the U.S. Government has been repeatedly accused
of problematic dealings with many important terrorism informants.
According to former CIA case officer Reuel Marc Gerecht, “[e]ven in
very high-profile cases, the handling of these individuals has been downright
Strikingly, under current federal jurisprudence, terrorism informants
have very limited access to judicial review of prosecutorial action.
Thus, if government officials do not follow through with their promises,
terrorism informants often have no recourse.
the United States spends large sums of money investigating international
intelligence on terrorist groups is difficult to obtain.
The FBI has the primary responsibility for investigating international
terrorism on behalf of federal prosecutors, but many federal agencies
participate in terrorist investigations.
Because the CIA has been monitoring international terrorism for decades,
it is uniquely positioned to assist law enforcement.
Unfortunately, in recent years the CIA has had difficulty performing its
crucial monitoring function, since it “now possesses a ‘deteriorated
human-intelligence capability that makes it almost impossible to penetrate key
targets such as terrorist organizations and cripples U.S. efforts to detect and
prevent terrorist attacks.’”
Because the CIA no longer cultivates its own human intelligence networks,
it is forced to rely on information from terrorism informants.
Article will focus on the unfortunate plight of one such terrorism
informant—Mr. Adnan Awad. It will
follow his path to the United States and examine how government officials
allegedly mistreated him. Had this
alleged mistreatment gone unnoticed by the international press, it is doubtful
that Mr. Awad’s story would deter current terrorists from defecting or others
from becoming informants. However,
Mr. Awad’s story—and many similar stories—have
reached the international public,
hindering the government’s recruitment of terrorism informants.
In 2002, U.S. News & World
Report ran an article outlining four instances where terrorism informants
accused the government of breaching promises.
The article stated that, because of these past instances, “U.S.
Intelligence agencies will have a hard time winning the trust of new
defectors—from terrorist groups such as al Queda, Hamas, and Hezbollah—whose
help they desperately need in the war against terrorism.”
This Article poses a solution to this problem.
this Article argues that the United States’ ethical rules and its sovereign
immunity doctrine do not adequately protect terrorism informants.
To remedy the situation, Congress must adopt ethical standards that
address the treatment of these informants and waive the government’s immunity
from suit so terrorism informants can have access to judicial review of
prosecutorial action. As Mr.
Awad’s attorney stated, “The problem with Awad was the whole process . . .
no one person [was] trying to jerk him around.
There was just a complete bureaucratic breakdown.”
I of this Article will give an in-depth examination of Mr. Awad’s history and
his allegations against the U.S. Government.
Part II will examine Mr. Awad’s difficulties in finding a forum to
adjudicate his civil claims. In
Part III, this Article will address whether Mr. Awad could bring ethical charges
against his assigned government officials for professional misconduct.
After Part II and Part III illustrate how prosecutors can mislead
terrorism informants without substantial fear of professional or civil
repercussions, Part IV will argue that this policy must be changed and will give
three possible solutions.
Adnan Awad’s History and his Dealings With The U.S. Government
in 1979, a terrorist organization known as the “15 May Faction” or the
“Abu-Ibrahim Faction” (hereinafter “May 15 Organization”) began
operating in Iraq with Iraqi government funding and support.
An offshoot of Wadi’ Haddad’s terror group,
the May 15 Organization specialized in the use of suitcase bombs and plastic
The organization had a global reach; it was accused of bombing ships,
airliners, crowded hotels, and restaurants in London, Rome, Vienna, Antwerp, and
August 30, 1982, a well-dressed Palestinian named Adnan Awad walked into the
U.S. Embassy in Bern, Switzerland, and announced that he had just left a highly
sophisticated suitcase bomb in a Geneva hotel room.
Mr. Awad told the authorities that the May 15 Organization had
blackmailed his Baghdad-based business and had coerced him into blowing up the
Once he arrived, though, he immediately decided to abort the mission and
asked the United States for help.
United States promptly notified the Swiss authorities that a bomb, disguised as
a suitcase, was hidden under Mr. Awad’s bed in his hotel room.
With the help of Mr. Awad, the authorities disarmed the bomb.
As Mr. Awad began to tell his story to American and Swiss officials, the
officials realized that he could be useful to their governments.
Just a few weeks earlier, a bomb had exploded on a Pan Am flight bound
from Tokyo, Japan to Honolulu, Hawaii—and Mr. Awad held crucial information
concerning the alleged attacker, Mohammed Rashid.
In fact, Mr. Awad knew Mr. Rashid personally and could easily describe
his modus operandi.
Furthermore, the construction of the Pan Am bomb was strikingly similar
to Mr. Awad’s plastic suitcase bomb.
With Mr. Awad’s help and eventual testimony, the Swiss and U.S.
authorities thought they could bring Mr. Rashid and his associates to justice
for their alleged involvement in the Pan Am bombing.
he could no longer safely return to his home, Mr. Awad was allowed to remain in
Switzerland and was issued personal identity documents under the alias Mahmoud
These documents allowed Mr. Awad to travel freely outside of Switzerland.
In addition to the personal identity documents, the grateful Swiss
authorities provided Mr. Awad with a BMW automobile and a $1750 monthly salary.
August 1984, representatives from the United States approached Mr. Awad and
asked for his assistance in the capture and prosecution of various members of
the May 15 Organization.
Among the representatives was the United States Attorney for the District
of Hawaii, Tim Mahon, a Department of Justice (“DOJ”) attorney, Zach Brown,
and Stan Velto, an FBI agent.
The officials sought Mr. Awad's help in apprehending Mr. Rashid, the
leader of the May 15 Organization, and his associates.
Mr. Mahon and Mr. Brown allegedly promised that he would receive a United States
passport and citizenship, Mr. Awad came to the United States and enrolled in the
United States Marshals Service’s Witness Security Program (“witness
protection”) in December of 1984.
Mr. Awad alleges that Mr. Mahon and Mr. Brown also promised him “that
his life in the United States would be at least equal to what he enjoyed in
Switzerland and, if he became dissatisfied, he could return to Switzerland.”
As a term of enrollment in witness protection, Mr. Awad signed a
Memorandum of Understanding, which outlined the placement of all his
identification documents, including his previous passports, with the United
States Marshals Service ("USMS") for safekeeping.
witness protection, Mr. Awad was barely trained in English, and although he was
a skilled construction worker, the officials placed him in mechanic’s school.
Even worse, according to Mr. Awad, was that the government assigned him a
female marshal—an “insult to Arabic people.”
Having become dissatisfied with witness protection, he threatened suicide
and voluntarily left the program in May of 1986.
Shortly thereafter, he testified in front of the grand jury in
Washington, D.C. about Mr. Rashid and the May 15 Organization's terrorist
On July 14, 1987, the grand jury indicted Mr. Rashid and others for their
part in the 1982 Pan Am airliner bombing.
authorities arrested Mr. Rashid in Athens, Greece, in May of 1988.
Rather than allowing the United States to extradite him to face charges
associated with the bombing of the Pan Am flight, the Greek authorities decided
to prosecute him in Greece under the terms of the Montreal Convention.
United States government officials then asked Mr. Awad to testify at Mr.
Rashid's trial in Greece.
Because of financial difficulties, and after U.S. Government persuasion,
he agreed to reenter witness protection and provide the requisite testimony
against Mr. Rashid.
Upon reentry into witness protection, Mr. Awad received various types of
financial assistance from the U.S. Government, including money for the payment
of a house mortgage.
two years after reentering witness protection, Greek officials deposed Mr. Awad
in Washington, D.C. concerning Mr. Rashid's trial.
A few months later, in February of 1991, Mr. Awad again voluntarily left
witness protection due to his dissatisfaction with the program.
After leaving, Mr. Awad provided “vital” testimony in Mr. Rashid's
trial in June and November of 1991, leading to Mr. Rashid's conviction and a
sentence of eighteen years in prison.
In the mandatory de novo retrial by a Greek appellate court two years later, Mr. Awad
again furnished crucial testimony that led to another conviction and a sentence
of fifteen years imprisonment.
In December of 1996, Greek authorities released Mr. Rashid from prison,
and in June of 1998 the FBI arrested him for the same offense.
After being arrested, Mr. Rashid moved to dismiss six of the nine charges
against him by claiming that his prior prosecution in Greece violated the Double
Both the District Court and the United States Court of Appeals for the
District of Columbia rejected Mr. Rashid’s motion.
Mr. Rashid is currently in U.S. federal custody awaiting trial.
Mr. Awad’s assistance in jailing Mr. Rashid, the U.S. Government still had not
fulfilled its alleged promises. In
December 1993, Mr. Awad’s patience finally ran out. He brought an action against the United States in the United
States District Court for the Northern District of Mississippi, seeking damages
pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 1402(b), 2401
(b), and 2671-2680, for false imprisonment, conspiracy, intentional infliction
of emotional distress, bad faith breach of contract, invasion of privacy,
negligence, trespass to chattels and conversion.
Mr. Awad based these claims on allegations that the U.S. Government did not
return his documents or provide him with a passport and citizenship, did not
give him the same treatment as he received in Switzerland, and did not give him
his total promised reward. The
District Court held a bench trial from February 26, 2001 through March 7, 2001.
At the conclusion of the trial, the District Court found that all of Mr.
Awad's claims arose out of one or both of the two alleged contracts with the
Because it held that exclusive jurisdiction over Mr. Awad's claims lay in
the Court of Federal Claims (hereinafter “CFC”),
it transferred the case pursuant to 28 U.S.C. § 1631.
that the CFC would dismiss his case for lack of jurisdiction, Mr. Awad appealed
the order of transfer, but the United States Court of Appeals for the Federal
In its decision, the Court of Appeals relied on the well-established
principle that "where a tort claim stems from a breach of contract, the
cause of action is ultimately one arising in contract, and thus is properly
within the exclusive jurisdiction of the Court of Federal Claims to the extent
that damages exceed $10,000."
The Court of Appeals agreed with the District Court that all of Mr.
Awad's claims arose in contract.
September 4, 2003, Mr. Awad filed an amended complaint in the CFC pursuant to
the Tucker Act, 28 U.S.C. § 1491(a)(1) seeking $5,000,000.00 in compensatory
damages, plus all costs, attorney fees and prejudgment interest.
Specifically, Mr. Awad's Amended Complaint asserts that the government
breached two alleged contracts: (1) an oral contract in which the government
allegedly promised Mr. Awad a United States passport, citizenship, and a
"life in the United States [that] would be at least equal to what he
enjoyed in Switzerland," and (2) a written Witness Certification Statement
("WCS") that promised the return of his documents if Mr. Awad decided
to revert to his true identity.
his complaint to the CFC, Mr. Awad stated:
in [witness protection, I] was not assimilated into the American culture, [I]
was provided cursory instruction in the English language, and was unable to find
suitable employment as a result. While
the USMS provided financial assistance to [me], this assistance was at a
subsistence level and did not compare with what the Swiss authorities had
provided . . . [I] also had basic freedoms taken away from [me] such as the
freedom to associate with whomever [I] chose and the right to travel freely, and
[I] was often under surveillance by the USMS. [I] was also forced to move at the whim of the USMS.
Awad further asserts that various government officials repeatedly lied to him
about receiving a passport and citizenship, the return of his personal identity
documents, and the receipt of a four million dollar reward.
Mr. Awad’s most troubling allegation is that he was trapped in the
United States for sixteen years without a passport, and thus he was unable to
visit his fatally ill father before he died.
After repeated attempts to obtain citizenship, Mr. Awad was finally sworn
in as an American citizen on June 8, 2000, and shortly thereafter received a
“I came to America because I love this country,” he told a Time
Magazine reporter in 1994. “They
[U.S. Government officials] took my freedom and put my life in danger.
Everything put in front of me was like a mirage.”
assuming the veracity of Mr. Awad’s allegations, under our current
jurisprudence Mr. Awad has no authority to challenge the government’s action.
Mr. Awad tried to bring a civil action, but it was dismissed for lack of
jurisdiction and transferred to the CFC.
Although the CFC has yet to rule, Mr. Awad’s case will also probably be
dismissed from the CFC for lack of jurisdiction—leaving Mr. Awad without a
forum that can adjudicate his claims.
A Lack Of
Civil Remedies: Mr. Awad’s CFC Claims
Awad’s last hurrah is his action against the United States in the CFC.
Because prosecutors cannot be sued for monetary relief in their personal
capacities, Mr. Awad could only bring his claims against the United States as an
Further, since the District Court found that Mr. Awad’s claims against
the United States were based solely on contracts, the CFC is the last and only
forum that could possibly adjudicate his claims.
Mr. Awad’s claims were filed in the CFC under the Tucker Act, which
grants the CFC sole jurisdiction over all express or implied contract claims
against the United States.
for Mr. Awad, t
CFC is a court of limited jurisdiction.
As with all federal courts, the CFC's jurisdiction to adjudicate a claim
depends upon, and is delineated by, the extent to which the United States has
waived its sovereign immunity.
The United States' waiver of sovereign immunity must be unequivocally
expressed, and cannot be implied.
Thus, any grant of jurisdiction to the CFC must be strictly construed.
As the CFC has stated, "[a]mbiguities regarding the existence of
subject matter jurisdiction must be resolved against the assumption of
Moreover, "a court may not in any case, even in the interest of
justice, extend its jurisdiction where none exists."
the Tucker Act is an affirmative waiver of sovereign immunity, it is solely
jurisdictional in nature and does not create any substantive right of
enforcement against the United States for money damages.
Pursuant to section 1491 of the Tucker Act, the CFC has jurisdiction to
"render judgment upon any claim against the United States founded . . .
upon the Constitution, or any Act of Congress, or any regulation of an executive
department, or upon any express or implied contract with the United
1491 is not a limitless waiver of immunity for breach of contract claims.
Indeed, it is well-settled that the waiver of sovereign immunity for
claims sounding in contract is limited to contracts executed by the United
States in its proprietary capacity. In
other words, the Tucker Act does not waive U.S. sovereign immunity for claims
based on contracts that private parties could not make.
As the CFC has repeatedly opined:
contract liability which is enforceable under the Tucker Act consent to suit
does not extend to every agreement, understanding, or compact which can
semantically be stated in terms of offer and acceptance or meeting of the minds.
The Congress undoubtedly had in mind as the principal class of contract
case in which it consented to be sued, the instances where the sovereign steps
off the throne and engages in purchase and sale of goods, lands, and services,
transactions such as private parties, individuals or corporations also engage in
only exception to the general rule that the CFC's jurisdiction in the contract
area is limited to those cases in which the government acts in its proprietary
capacity—is that it may still
possess jurisdiction if it finds "specific authority . . . to make the
agreement obligating the United States to pay money, and
[that the agreement] spell[s] out how in such a case the liability of the United
States is to be determined."
The Nature of Mr. Awad’s Contract Claims
accepting as true all factual allegations made in a similar complaint, both the
United States Court of Appeals for the Federal Circuit and the United States
District Court for the Northern District of Mississippi found that all of Mr.
Awad's claims arose from one or both of the alleged contracts with the
Assuming, arguendo, that the parties actually entered into the alleged
contracts, an examination of the nature of the contracts makes it obvious that
the contracts were not of a proprietary nature. The government's purpose in contracting with Mr. Awad was
clear: to arrest, detain, and imprison Mr. Rashid, a notorious terrorist.
The procedures surrounding the arrest and confinement of a dangerous
terrorist are purely governmental functions with no private analogue.
Consequently, if the government did contract with Mr. Awad, the
government was acting in its sovereign capacity, as it would if it contracted
with any terrorism informants.
leading contract case defining the jurisdictional scope of the Tucker Act is Kania
v. United States, 650 F.2d 264 (1981).
In that oft-cited case,
the plaintiff, Eugene Kania, sought damages for various costs and expenses
associated with his successful motion to dismiss an indictment against him.
The focus of the dispute was an oral contract between Mr. Kania and an
Assistant United States Attorney ("AUSA") to provide testimony in
exchange for immunity.
After he had provided the testimony, the government indicted Mr. Kania;
however, the United States District Court for the Southern District of New York
dismissed the indictment.
The District Court found that: (1) the terms of the agreement included a
promise that Mr. Kania would not be prosecuted if he testified truthfully; and
(2) there was no evidence that Mr. Kania had violated this agreement.
Mr. Kania then brought an action in the United States Court of Claims
under the Tucker Act seeking damages.
The Court of Claims found that it lacked jurisdiction over Mr. Kania's
claims, because the claims were not within the confines of the Tucker Act's
jurisdictional grant of power.
Specifically, the Court found that the oral contract between the AUSA and
Mr. Kania had no private analogue, and that accordingly, the contract was
entered into by the United States in its sovereign, as opposed to its
holding in Kania applies directly to
Mr. Awad’s case. In his case, the
government was not contracting to "purchase . . . goods, lands, and
services . . . such as private parties, individuals or corporations also engage
in among themselves."
Instead, the government was offering protection and documentation to a
former terrorist in exchange for testimony.
Even the critical consideration offered by the government—a United
States passport and citizenship—was of a sovereign nature and not available
from a private party.
trying to distinguish the holding in Kania
from his own case, Mr. Awad could argue that he was in a better position to
contract with the government because he was not an inmate, suspect, or defendant
in a criminal investigation or proceeding.
Unfortunately for Mr. Awad, this argument will fail because, while the
purpose of the government's action is highly relevant, Mr. Awad’s criminal
status has no bearing on the CFC’s jurisdiction according to the CFC’s
decisions in Commonwealth of Kentucky and Grundy.
Grundy, the plaintiffs had agreed with
a deputy U.S. Marshal to allow the U.S. DOJ to use their property to house and
conceal prospective witnesses from organized crime figures.
The plaintiffs were not under investigation for any criminal activity.
The oral agreement provided that:
[the government] . . . would not place in "the safehouse" any
witnesses who were residents of Rhode Island; and (2) that plaintiffs would come
to no harm by reason of their cooperation with the government, the two named
marshals and the Attorney General would protect the plaintiffs should they be
exposed to any danger, and that the government would indemnify them from any
losses they might sustain because of their cooperation.
plaintiffs alleged a breach of this agreement under the Tucker Act and sought
The court dismissed the complaint because the government entered into the
contracts in its sovereign capacity.
Commonwealth of Kentucky, the state
sued the United States for breach of a Memorandum of Understanding (“MOU”)
agreement pursuant to which the Army Corps of Engineers was to perform
maintenance and repairs of certain locks and dams pending divestiture.
The court dismissed the complaint because the government undertook the
MOU in its sovereign capacity.
The court stated: "Even though the government is in privity of
contract with a claimant, no liability arises for government acts taken for the
benefit of the general public."
Grundy and Commonwealth of Kentucky illustrate two important points: the
government's purpose is highly relevant, and Mr. Awad's criminal status when he
entered into the alleged contracts is irrelevant. In Mr. Awad’s case, the government's sole purpose was to
benefit the general public by helping to remove notorious terrorists from
To achieve this goal the government allegedly contracted with Mr. Awad
for testimony, a contract that simply would not occur between private parties.
Therefore, the CFC will likely find that it lacks jurisdiction to
consider Mr. Awad's claims based upon the alleged contracts.
The Specificity Exceptions
has been shown, the United States probably entered into both of the alleged
contracts upon which Mr. Awad's claims are premised in its sovereign capacity, as
would be the case if the government contracted with any other terrorism
Despite this fact, the CFC may
still possess jurisdiction if it finds "specific authority . . . to make
the agreement obligating the United States to pay money, and
[that the agreement] spell[s] out how in such a case the liability of the United
States is to be determined."
It is axiomatic that Tucker Act jurisdiction does not extend to actions
for recovery of damages based upon unauthorized acts of government officials.
For contracts among private parties, "apparent authority" is
sufficient, but when contracting with the government there must be specific
authority, which places a significant burden on the party negotiating an
agreement with a government representative.
Mr. Awad’s case the alleged agreements were contracted for by individuals
without specific authority and neither of the alleged agreements "spell[ed]
out how . . . the liability of the United States" was to be determined.
Thus, Mr. Awad's claims probably do not meet this exception.
The next two subsections will examine each of the two alleged contracts
individually and show specifically why they do not meet the exception.
The Oral Contract
it is apparent that the government officials who allegedly promised Mr. Awad
that he would become a U.S. citizen lacked the authority to make such a promise,
because only the Attorney General has authority "to naturalize persons as
citizens of the United States.”
In any case, Mr. Awad has not alleged that the Attorney General delegated
this authority to Mr. Mahon or Mr. Brown. Further,
Mr. Awad did not meet the residency requirements of 8 U.S.C.A. § 1427(a), and
therefore the Attorney General himself did not have the power to grant him
citizenship in 1984.
To meet the residency requirements, Mr. Awad would have had to live in
the United States continuously for the previous five years (1979-1984) and be a
person of good moral character.
even if Mr. Awad could have the residency requirements waived, and the Attorney
General had delegated his authority to Mr. Mahon and Mr. Brown, thereby
providing them specific authority to enter into the agreement, the oral contract
did not offer specifics on the determination of liability.
Mr. Awad's Amended Complaint does not allege that the terms of monetary
liability in case of breach were ever discussed among the parties.
In fact, Mr. Mahon and Mr. Brown allegedly told Mr. Awad that if he
became dissatisfied, he could return to Switzerland, not that he would receive
For these reasons, the alleged oral contract does not fit the Kania
2. The Witness Certification Statement (“WCS”)
the circumstances of the agreement, the inspector who signed the WCS probably
did not have the specific authority to obligate the government to pay money to
Although the inspector did have the authority to sign the WCS and retain
Mr. Awad's documents, the inspector did not have the authority to pay Mr. Awad
for these documents or to set monetary liability in case of breach without
permission of the Director or the U.S. Marshal Service.
Importantly, Mr. Awad did not allege in his Amended Complaint that the
Director of the U.S. Marshal Service delegated this authority to the inspector.
assuming specific authority, the WCS does not in any way obligate the United
States to pay money, and it does not discuss how liability for breach is to be
The agreement only includes provisions regarding the retention of Mr.
Awad's documents. Thus, the WCS probably does not satisfy the Kania specificity exception. Accordingly,
because both contracts do not meet the Kania exception, the CFC probably lacks jurisdiction over Mr.
Professional Sanctions: Current Ethical Rules On
the past 150 years, ethical rules governing the practice of law have changed
Once nonbinding “aspirational goals for the legal profession,” many
ethical rules now have the same authority as statutory law.
“Whereas violations of early ethical canons at most led to ‘informal
sanctions and peer pressure,’ breaching modern ethical rules can result in
formal sanctions, exclusion of evidence, or, if the perpetrator is a prosecutor,
dismissal of criminal charges.”
within the 920-page Omnibus Consolidated and Emergency Supplemental
Appropriations Act of 1999
was a small provision known as the McDade Amendment
that transformed the ethical regulation of federal prosecutors.
Prior to the Amendment, federal prosecutors were required to adhere only
to the ethical rules of the jurisdiction in which they were licensed.
However, the McDade Amendment, titled “Ethical Standards for Attorneys
for the Government,” states that “an attorney for the Government shall be
subject to State laws and rules, and local Federal court rules, governing
attorneys in each State where such attorney engages in that attorney’s duties,
to the same extent and in the same manner as other attorneys in that State.”
Thus, this broadly worded statute seemingly mandates that DOJ attorneys
must follow the ethical rules established in any and all of the States in which
Applicable Professional Rules
if read broadly, the penumbra of state ethical rules that now applies to DOJ
attorneys does not directly supervise a prosecutor’s discretionary decisions.
For the most part, a prosecutor’s discretionary decisions are
“The only real voice in the federal system that limits prosecutorial
discretion can be found in the guidelines of the Department of Justice, internal
mechanisms which are legally unenforceable by defense counsel.”
review of the Model Rules of Professional Conduct (“Model Rules”) and the
American Bar Association’s (“ABA”) Model Code of Professional
Responsibility (“Model Code”) reveals that, if Mr. Awad’s allegations are
true, it appears that Mr. Mahon and Mr. Brown could have violated Rules 4.1(a)
and 8.4(c) of the Model Rules and DR 1-102(4) of the Model Code.
Model Rule 4.1(a)
Rule 4.1(a) states that “[i]n the course of representing a client a lawyer
shall not knowingly . . . make a false statement of material fact or law to a
Recently, the United States Court of Appeals for the Third Circuit issued
an opinion on Pennsylvania Rule 4.1(a), which is identical to Model Rule 4.1(a).
United States v. Whittaker, the Third
Circuit overturned the United States District Court for the Eastern District of
Pennsylvania’s decision that found that an Assistant United States Attorney
(“AUSA”) had violated Pennsylvania Rule 4.1(a).
The alleged unethical conduct involved a signed letter from the DOJ to
car theft victims where some of the victims were also being investigated for
their involvement in the thefts.
prosecutor] signed a letter addressed to approximately 300 people who owned cars
that were dismantled in  chop shops [that were under investigation] to advise
them of the progress of the investigation and to invite them to file victim
impact statements or to make inquiry with respect to the case with certain
specified Government personnel. [The
prosecutor] prepared the letter, but he did not send it personally.
Rather, he provided a paralegal in his office with a list of persons
whose vehicles had been dismantled. This
list included persons the Government suspected had participated in insurance
give-ups. [The prosecutor], however, instructed the paralegal not to
send the letter to these suspects. Unfortunately,
the paralegal erroneously sent the letter to everyone on the list, including
being indicted, Whittaker alleged, among other claims, that the letter was
prejudicial and that it was a misrepresentation.
After finding a violation, the district court sanctioned the AUSA by
disqualifying him from prosecution of the case.
its decision overturning the district court, the Court of Appeals stated: “Of
course the letter should not have been sent, but this case involved a mistake,
not a lie, and the district court certainly should have treated it that way.
In this regard, we point out that it is not unusual for parties in a
judicial proceeding to correct mistakes.”
Thus, the Court of Appeals found it “perfectly clear” that the
district court should not have disqualified the AUSA.
this decision to Mr. Awad’s case illustrates just how difficult it can be for
an informant to get a government attorney sanctioned for professional
misconduct. Although the language
in the Third Circuit’s opinion seems to intimate that if a government attorney
lies to a third person the attorney can be sanctioned, the penalty given
(disqualification from prosecution) would not deter prosecutors from lying to
Model Rule 8.4/Model Code DR 1-102(A)
more textually persuasive than Model Rule 4.1(a), Model Rule 8.4(c) states,
“It is professional misconduct for a lawyer to . . . engage in conduct
involving dishonesty, fraud, deceit, or misrepresentation.”
Similarly, Model Code DR 1-102(A) states that “[a] lawyer shall not . .
. [e]ngage in conduct involving dishonesty, fraud, deceit, or
Because the language of these two provisions is so similar, this Article
will assume that they are interchangeable.
prima-facie violation of Rule 8.4(c) can be made out where a
“misrepresentation is knowingly made, or where it is made with reckless
ignorance of the truth or falsity thereof . . . [N]o actual knowledge or intent
to deceive . . . is necessary.”
Additionally, half-truths or silence as to material facts has been found
to violate Rule 8.4(c),
as has the failure to correct a misrepresentation.
the Legal Ethics Committee of the District of Columbia Bar issued Opinion 323
finding that attorneys
who are employed by a national intelligence agency do not violate Rule 8.4(c) if
they engage in fraud, deceit, or misrepresentation in the course of their
non-representational official duties.
The Committee stated, “Such employees may, on occasion, be required to
act deceitfully in the conduct of their official duties on behalf of the United
States, as authorized by law.”
According to the Committee, the Opinion is limited only to situations
where the attorney’s deceit is authorized.
there are a handful of cases involving government or state attorneys
misrepresenting the facts, or outright lying, all of the cases deal with abuses
of court procedures.
There do not seem to be any cases that deal directly with a federal
prosecutor who has misled a terrorism informant.
However, even without specific case law on point, it seems that if Mr.
Awad’s allegations are true, Mr. Mahon and Mr. Brown could be subject to court
sanction only if their acts were unauthorized.
Since Mr. Mahon and Mr. Brown are licensed attorneys, they should have
known that they did not have the authority to grant Mr. Awad citizenship and a
passport; thus, this was a “misrepresentation . . . knowingly made.”
Yet, if they had the authority to make this misrepresentation from a
superior, Opinion 323 seems to allow their conduct.
On the other hand, if they acted without authority, Mr. Mahon and Mr.
Brown do seem to have facially violated Model Rule 8.4(c), but it is too
difficult to surmise the extent of any possible sanctions that they could
Office of Professional Responsibility (“OPR”) within the DOJ is slated as
the internal monitor of ethical violations committed by federal prosecutors,
but in recent years it has been criticized for failing to hold prosecutors
“publicly accountable for misdeeds.”
The OPR typically investigates allegations of “abuse of prosecutorial
or investigative authority,” “[m]isrepresentation to the court or opposing
counsel,” “[u]nauthorized release of information (including grand jury
information),” “[i]mproper oral or written remarks to the court or grand
jury,” and “[c]onflicts of interest.”
Rarely, if ever, does the OPR investigate a claim of deceit or
misrepresentation, and therefore they are unlikely to investigate Mr. Mahon, Mr.
Brown, or any others engaged in similar activity.
the same time, professional rules that could be broadly interpreted, such as
Rules 4.1(a) and 8.4(c) and DR 1-102(4), generally do not play as much of a role
in regulating federal prosecutors.
This is the case for at least three reasons: (1) the ethical rules
regulate prosecutors with a “fairly light touch”;
(2) disciplinary authorities are not eager to bring actions against prosecutors
except where the conduct is unambiguously wrong;
and (3) courts are often liberal when interpreting professional rules with
regard to prosecutors.
Accordingly, even if Mr. Mahon and Mr. Brown did violate an ethical rule
in Mr. Awad’s case, they are unlikely to ever face professional sanctions.
Further, any professional sanctions they could receive (even disbarment)
would not repay Mr. Awad for his alleged suffering, or lead to enforcement of
his alleged contracts. Enforceable
professional sanctions would, however, help to curb prosecutorial misconduct in
the future and thereby minimize the number of unfulfilled promises to
To Protect Terrorism Informants: Three Possible Solutions
is highly unlikely that the CFC will deviate from the settled legal authority
and grant Mr. Awad jurisdiction. Even
if it did, its decision will not be binding on other CFC cases and thus will not
help protect future informants from governmental misconduct.
Moreover, if the CFC granted Mr. Awad jurisdiction and the case were
appealed, the Court of Appeals for the Federal Circuit would be in a tough
situation. If the Federal Circuit
were to find that the CFC had jurisdiction, it could open the door to litigation
over other actions that are rightly protected by sovereign immunity, such as
plea bargains and other government contracts undertaken for the benefit of the
general public. Or, if the Federal Circuit were to deny jurisdiction, it
would be sending the message to terrorism informants that contracts made with
government officials are not always enforceable.
Fortunately, there are better non-judicial solutions.
Article poses three possible solutions to this problem.
First, the DOJ could amend its internal guidelines so as to explicitly
prohibit this type of conduct. Second,
individual states could pass ethical rules prohibiting this type of conduct.
Finally, Congress could pass a bill or amendment permitting terrorism
informants like Mr. Awad to bring civil suits under the Tucker Act and pass
legislation that clearly states that it is prosecutorial misconduct for
government attorneys or their agents to make false or misleading statements to
terrorism informants. An
analysis of all three possibilities reveals that this is a problem Congress must
An Amendment to the DOJ Attorney’s Manual
United States Attorney’s Manual (“Manual”) is prepared under the Attorney
and periodically revised by the Executive Office for United States Attorneys.
It is a loose-leaf text designed as a quick reference for DOJ attorneys.
The Manual does not create any rights enforceable at law in a civil or
Under federal regulation, the Manual is public information
and is available at all depository libraries, law school libraries, the Library
of Congress, and on the DOJ’s website.
Manual is divided into nine titles: General,
Appeals, Executive Office for
United States Attorneys,
Civil, Environment and Natural
Antitrust, Civil Rights, and Criminal.
Of these nine titles, the Criminal title contains regulations applicable
to federal attorneys who deal with terrorism informants.
For example, subsection 9-13.500 of the Manual mandates that the Criminal
Division’s Office of International Affairs be consulted before contact is made
with any foreign or State Department official in matters regarding the obtaining
of evidence in a criminal investigation or prosecution.
Further, subsection 9-21.310 states that investigative agents (e.g. FBI
agents) and DOJ trial attorneys are “not authorized to make representations to
witnesses regarding funding, protection, or other Witness Security Program
services, including admission into the Program.”
However, this provision would allow some DOJ attorneys, like Mr. Mahon (a
United States Attorney), to make representations about witness protection to
No other sections of the Manual are relevant to the veracity of DOJ
attorneys’ representations to terrorism informants.
the Manual can help curb prosecutorial conduct, it is not enforceable law.
Thus, to create formidable repercussions for prosecutorial misconduct in
this area, the states or Congress must regulate by statute.
Even so, amending the Manual’s language to explicitly disallow
misrepresentations to terrorism informants could help protect these important
allies. This Article recommends
amending sub-section 9-21.310, already titled “Representations and
Promises,” to read (added language is bracketed and bolded):
agents and government trial attorneys are not authorized to make representations
to witnesses regarding funding, protection, or other Witness Security Programs
services, including admission into the Program. Representations or agreements, including those contained in
plea agreements, concerning the Program are not authorized and will not be
honored without specific authorization from OEO.
[No government attorney may
knowingly or recklessly make false or misleading promises or representations to
witnesses or informants involved in the prosecution or investigation of
international terrorist activities.]
this simple provision may not legally ensure the protection of terrorism
informants’ rights, it could help prosecutors better understand their role
when dealing with informants and curtail prosecutorial misconduct.
it may seem counter-intuitive for states to regulate federal prosecutorial
activity abroad, the McDade Amendment now grants them this power.
The obvious problem with state regulation is that one state cannot
regulate all the activities of all DOJ attorneys.
Moreover, many representations made to terrorism informants happen
abroad, where the government attorney would be subject only to his bar
membership state’s ethical rules.
Even with these shortcomings, though, if a majority of states had a rule
outlawing misrepresentations to terrorism informants, the informants would be
much more likely to trust governmental representations.
Nonetheless, there is superior way to alleviate this
best approach, and the one advocated by this Article, is for Congress to: (1)
narrowly waive sovereign immunity by amending the Tucker Act; and (2) attach a
rider to a bill explicitly outlawing misrepresentations to terrorism informants.
It is important for the waiver of sovereign immunity to be narrow,
waiving sovereign immunity only in cases involving government contracts with, or
promises to, informants used in the prosecution or investigation of terrorist
individually neither of these two proposed Congressional actions would guarantee
the elimination of misconduct, together these actions will.
By amending the Tucker Act to allow for suits against the government
where there is an alleged contract between a government attorney (or agent) and
a terrorism informant, the informant will be judicially protected.
However, since government attorneys are not generally liable individually
under the Tucker Act,
amending it in this way will not necessarily curb prosecutorial misconduct.
To adequately protect terrorism informants and defectors, Congress must
also outlaw this type of prosecutorial misconduct by criminalizing it or
mandating strict professional sanctions.
the Tucker Act would not be difficult. Congress
could simply insert the following language into 28 U.S.C. § 1491 (added
language is bracketed and bolded):
The United States Court of Federal Claims shall have jurisdiction to render
judgment upon any claim against the United States founded either upon the
Constitution, or any Act of Congress or any regulation of an executive
department, or upon any express or implied contract with the United States, or
for liquidated or unliquidated damages in cases not sounding in tort. For the
purpose of this paragraph
, [(1)] an express or implied contract with the Army and Air Force
Exchange Service, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges,
or Exchange Councils of the National Aeronautics and Space Administration shall
be considered an express or implied contract with the United States[;
and (2) an express or implied contract with the United States includes any
contract made between a United States government attorney or their authorized
agent and a witness or informant involved in the prosecution or investigation of
international terrorist activity].
could then define the scope of the terms “United States government attorney”
and “witness or informant” in a later section of the Act.
This clear and explicit language would allow only informants like Mr.
Awad access to civil remedies, while not adversely affecting the other
appropriate sovereign acts of the government.
Congress would make a bold statement by passing these provisions—that
future terrorism informants could trust government officials.
At the same time, the impact of this legislation would neither heavily
burden government officials nor expose the government to heavy litigation
because the proposed amendments would only be applicable to a very small number
article poses an important inquiry. If
government officials can mislead terrorism informants without ramification, then
informants will not trust the U.S. Government and the United States could lose
its most important weapon in the war on terrorism.
“Only one thing,” according to Jim Pravitt, the head of the CIA’s
Directorate of Operations, “would have given us sufficient foreknowledge to
have prevented the [September 11th attacks]—a well-placed insider
providing critical intelligence on specific targets and times of attack.”
Without the help of terrorism informants, the United States is powerless
to investigate and thwart terrorist attacks.
U.S. must promote a policy that protects informants like Adnan Awad.
Without these protections, would-be informants will not take the grave
risks associated with abandoning their allies and homeland.
To win the War on Terrorism, the United States must ardently protect its
greatest weapon—terrorism informants.
The terms of the Memorandum of Understanding are, in relevant part:
witness acknowledges that it is necessary to place in safekeeping with the
Marshals Service all identification documents (driver's license, credit
cards, etc.) that reveal his/her true identity for reasons of security.
The Marshals Service agrees to retain these documents indefinitely,
and will return the documents to the witness should he/she desire to revert
to his/her true identity.
Compl. ¶ 10.
Id. ¶¶ 9, 10; Awad,
2001 WL 741638, at *1.
Awad, 2001 WL 741638, at *2.
Adnan Awad v. United States, 301 F.3d 1367 (Fed. Cir. 2002).
In arguing against transfer in the United States Court of Appeals for the
Federal Circuit, Mr. Awad argued that the CFC lacked jurisdiction because
the government's actions were those of a sovereign nature, and were not
301 F.3d at 1374. By making
this assertion, Mr. Awad hoped that the Court of Appeals would not transfer
the action, since the transfer statute provides "that a court may
transfer an action to another court if the transferor court lacks
jurisdiction to hear the action and the transferee court would have
Rather than determining the jurisdiction of another court, the Court
of Appeals instructed the CFC to determine its own jurisdiction.
See Horowitz v. United States, 267
U.S. 458, 461 (1925) ("It has long been held by the Court of Claims
that the United States, when sued as a contractor, cannot be held liable for
an obstruction to the performance of the particular contract resulting from
its public and general acts as sovereign"); Doe,
37 Fed. Cl. 74, 77 (1996) (finding no jurisdiction over breach of an
agreement to seek a reduction in a prison sentence); Drakes v. United
States, 28 Fed. Cl. 190 (1993) (finding no jurisdiction over breach of plea
agreement); Grundy, 2 Cl. Ct. 596
(finding no jurisdiction over witness protection agreements); Kania,
650 F.2d at 268 (finding no jurisdiction over an immunity agreement).
The holding in Kania has been
consistently upheld and followed by the Court of Federal Claims in many
different contractual situations. See,
e.g., Doe, 37 Fed. Cl. 74 (reduced sentence agreement); Drakes,
28 Fed. Cl. 190 (plea agreement); Commonwealth
of Kentucky, 27 Fed.Cl. 173 (MOU agreement); Grundy,
2 Cl. Ct. 596 (witness protection agreement).
See, e.g., Doe
v. United States, 37 Fed. Cl. 74 (1996) (reduced sentence agreement);
Drakes v. United States, 28 Fed. Cl. 190 (1993) (plea agreement); Commonwealth
of Kentucky, 27 Fed.Cl. 173 (MOU agreement); Grundy,
2 Cl. Ct. 596 (1983) (witness protection agreement).
City of El Centro v. United States, 922 F.2d 816, 826 (Fed. Cir. 1990).
In 1985 a section was added that would have allowed Mr. Awad to become a
citizen without meeting the residency requirements, but only upon the
agreement of the Attorney General, the Director of the CIA, and the
Commissioner of Immigration. 8
U.S.C. § 1427(f). This section
only applies to persons making extraordinary contributions to national
See Sadeghi, 46 Fed. Cl. at 663
("Even if we accept [the] allegation of specific authority, the text .
. . offers no specific language on the determination of liability.")