He is well-known and widely quoted as an expert on military law. Eugene Fidell was the successful defense counsel for U.S. Army Captain James J. Yee, the Muslim chaplain at Guantanamo Bay who in 2003 was accused of aiding the enemy and other offenses. Now 65, Fidell practices with a Washington law firm and teaches at Yale Law School. He started out as a JAG officer in the Coast Guard. Here's how he got there—and what impact it had on his civilian career.
In the mid-1960s, when I was in law school, a war was raging in Vietnam and men were subject to the draft. Many of my classmates never served, either as a result of deferments or because of family status or medical conditions. I don't have the statistics, but my hunch is that less than one-fifth of my Harvard Law School class of 1968 ever wore a uniform. I assumed I would wind up entering the service and considered interrupting my studies to get my obligation behind me. My brother, Jay, who was on duty with the Coast Guard at the time, prevailed on me to stay in school—and I'm glad I did.
I thought I would join either the Navy or the Coast Guard. To be better prepared, I asked the Naval Reserve Officers Training Corps unit at Harvard if they would allow me to audit their navigation course. (Yes, there was an NROTC unit at Harvard at the time; we joked that the only thing between it and the cyclotron was the Divinity School.) The commanding officer consented, and for a semester, while others were going to business planning or advanced taxation classes each morning, I would head over to the NROTC building with my parallel rules, dividers, New England coastal chart, and copy of Dutton's Navigation and Piloting.
Eventually, I was faced with a choice between a four-year tour with the Navy Judge Advocate General's Corps and a somewhat shorter tour in the Coast Guard. I opted for the Coast Guard, entering through Officer Candidate School in Yorktown, Virginia, and then being recommissioned as a judge advocate. Recommissioning had the peculiar effect of vaulting me over a number of my OCS instructors on the active-duty promotion list to the exalted rank of lieutenant. I attended Naval Justice School and served most of my three years, seven months, and eight days of active duty in the First District Legal Office in Boston and in the Maritime Laws and Treaties Branch of the Office of Operations at Coast Guard Headquarters in Washington.
Although I'd requested assignment to one of the high-endurance cutters based at Subic Bay in the Philippines, my sea duty was sorely limited-to an occasional orientation cruise and a week's service as legal officer for the 1970 America's Cup Patrol Squadron, based in Newport, Rhode Island. Most of my work was in courts-martial, investigations, and fisheries enforcement. I was involved in the legal niceties of the first East Coast seizure of a foreign fishing vessel (the West German trawler Conrad) and several tense cases concerning Soviet fishing vessels off Alaska. I also played a small role in the case of Simas Kudirka, the Lithuanian who sought to defect to the USCGC Vigilant (WMEC-617) in 1970, but was returned to Soviet authorities. (See the August 2008 Proceedings.)
When I put my uniform aside to enter private law practice in 1972, I didn't expect to use the experience I'd gained in the Coast Guard. I could not have been more mistaken: my military service has dramatically influenced much of what I have done in the ensuing years.
Indeed, I began taking on military-related cases almost immediately after leaving active duty. I also began a lifelong pattern of writing for legal journals, and had the pleasure of seeing a law review article I had written on summary courts-martial cited by both the majority and the dissent in a U.S. Supreme Court case. For a young lawyer this was very exciting, and it encouraged me to keep writing.
I also became the American Civil Liberties Union's volunteer attorney for cases before the U.S. Court of Military Appeals. Among the cases I argued was one asking the court to permit a member of one service to request an attorney from another branch. It's now an accepted principle. I later had the privilege of arguing (on behalf of the ACLU) before the Supreme Court that the armed forces should not be able to court-martial service members for offenses that had no connection to the military other than the fact that the accused was on active duty. On that one, we lost.
Throughout this period I was gaining experience with my law firm, where I had excellent mentors. As is often the case with large firms, however, the "speaking parts" tended to go to the most senior lawyers. But the pro bono work I did for the ACLU gave me unusual experience in getting on my feet and arguing appeals. I increasingly focused on military legal issues, and in 1984 I joined what is now Feldesman Tucker Leifer Fidell LLP. There I had the privilege to successfully represent U.S. Army Captain James J. Yee, the Muslim chaplain at Guantanamo Bay. The case had a happy ending, and Captain Yee received an honorable discharge.
Besides scholarship and volunteer efforts in the military justice field, I became involved in maritime and fisheries law, building on a different aspect of my experience in the Coast Guard. One surprising opportunity was service as a consultant to the Rome-based United Nations Food and Agriculture Organization, advising Liberia, Sierra Leone, and the Cayman Islands on the reform of their fisheries laws.
By the early 1990s it had become apparent that there was a need for a public-interest organization in the military justice field. Together with Rear Admiral John S. Jenkins, a retired Judge Advocate General of the Navy; Captain Kevin J. Barry, a gifted retired Coast Guard lawyer and judge who passed away last year; and Professor Stephen A. Saltzburg of the George Washington University School of Law, I helped establish the National Institute of Military Justice (NIMJ), which is now affiliated with the American University's Washington College of Law.
NIMJ's goals are to advance the fair administration of justice in the armed forces and to foster improved public understanding of military justice. Obviously, the years since the terrorist attacks of 9/11 have been busy ones for NIMJ, and we have had to gear up to meet the increased needs arising from developments such as the revival of military tribunals and the related proceedings at Guantanamo Bay.
In 1993, I began teaching military justice as an adjunct faculty member, offering courses at Yale Law School, Harvard University, and American University. In 2009, I became "of counsel" at my law firm and accepted a full-time position at Yale; there I have taught not only military justice but admiralty law, Native American law, and, with my wife, Linda Greenhouse, who is also on the Yale faculty, a seminar on Guantanamo. I'm the youngest of perhaps five members of the Yale Law School faculty who have been on active duty. We try to meet from time to time with the growing number of veterans in the student body, many of whom have already done extraordinary things for the country,
When my wife and I got married in 1981, one of the first things to go from my single days was the Coast Guard officer's sword that had hung over the fireplace in the living room of my little bachelor house. (It's now in the attic, along with my obsolete uniforms.) Another, in time, was my reefer, complete with Coast Guard buttons. It was mighty frayed at the cuffs. But my old chambray work shirt from OCS, with my name barely legible on the fabric, is still on a hanger.
The Coast Guard has changed a lot since I was on active duty. There were few African-Americans in the officer corps then, and the only women officers were aging SPARs, female reservists who'd signed up during World War II. The service is doing a wider array of jobs than it used to. Almost everything about it seems to have improved.
For me, the intangibles remain: friendships from active-duty days and professional interests that go back that far as well. Both have enriched my life and make me grateful for having had the opportunity to serve. Although I support reintroduction of the draft, I recognize that the military is not for everyone. But in my case it was a chance to perform public service, to grow professionally, and to set what proved to be a rewarding course for the future.