By William Fisher
The American Bar Association, the American Civil Liberties Union, and numerous other legal organizations, are demanding that the Senate Armed Services Committee to reject a provision in a House of Representatives bill that would mandate an investigation into lawyers representing Guantanamo Bay detainees.
The National Defense Authorization Act for Fiscal 2011 requires the inspector general to investigate "the conduct and practices" of Guantanamo lawyers and report back to the House and Senate Armed Services Committees within 90 days.
The provision was quietly tucked into the Defense bill last week by Rep. Jeff Miller, a Florida Republican. At the time, he criticized the John Adams Project, a joint enterprise of the ACLU and the National Association of Criminal Defense Lawyers. The project provides research and legal assistance to military lawyers defending detainees in military commissions.
The bill is pending on the House floor where debate and passage are expected this week.
The lawyers have defended the legality and propriety of their efforts. They
contend that the detainees were illegally tortured in the custody of the Central Intelligence Agency, and they want to raise that issue at trial. To do so, they say they need to identify potential witnesses to the interrogation sessions.
Rep. Miller says this effort is “disloyal” and illegal. He says the
“intelligence community deserves a complete and honest investigation” into
whether laws or policies were violated.
Democrats on the committee agreed to Miller’s proposal after several
modifications. One change added the requirement of “reasonable suspicion” of wrongdoing before a lawyer would be investigated by the inspector general.
"I think this is of a piece with lots of other things we've seen in the last few
months -- attacks on what kind of representation and protection detainees are
entitled to," said terrorism law scholar Stephen Vladeck of American University Washington College of Law. "Whether or not this provision makes it through the House and Senate, it's just another episode in an increasingly common story."
Lawyers for Guantanamo detainees strongly condemned the Miller proposal. One of them, Barry Coburn, said, "When I was in law school, I was taught in our professional-responsibility class that the highest calling of a lawyer is to represent an unpopular client."
"I don't think the government should attempt to punish or intimidate us for doing so," he added.
And Chip Pitts, President of the Bill of Rights Defense Committee, told us,
“This vague, overbroad, ill-considered, and likely unconstitutional bill attempts to use the country’s military to chill the brave and already besieged military and civilian defense lawyers from doing their job illustrates the extent to which that the basest political instincts still infect counterterrorism policy in ways that threaten not only the much-needed ongoing search for accountability for torture and other rights violations, but the rule of law itself.”
He said it is “impossible for lawyers to represent Gitmo detainees without violating the vague terms of this bill (which include any interference with the operations of the Department of Defense).
Pitts sees the attack on the GITMO lawyers as “a form of neo-McCarthyism that recalls an “A to Z” of some of the worst historical and current excesses -- in places ranging from Argentina and Chile under their “dirty wars” to Nazi Germany and today’s China, Syria and Zimbabwe.”
“This latest attack on lawyers is a solution in search of a problem: as factually unjustified and repulsive as the Bush administration’s politically motivated and counterproductive attacks on DOJ and Gitmo lawyers and the continued attacks by rightist demagogues like Bill Kristol and Liz Cheney on these lawyers and on the very use of courts to try terrorist suspects. The fact that the lawyers represent suspects clearly doesn’t make them sympathetic to the underlying crimes of which their clients are accused; but without lawyers, how will the system ever deliver justice or ascertain the truth? The patriotic lawyers representing these unpopular clients deserve the highest praise – not stigmatization that attempts to stop them from doing their jobs.
Scott Horton, Constitutional law expert and contributing editor at Harper's Magazine, held similar views. “This provision was sponsored by Florida Republican Jeff Miller and it's another chapter in the efforts of political figures close to Dick Cheney to smear the habeas lawyers,” he said.
“Why? ”Horton asked, and then answered: “Things haven't been going well for GOP's Gitmo narrative. The total historical prison population of Gitmo is 779; only 181 prisoners remain, and it seems unlikely that more than 60-70 of them will ever face any charges--most of them the prisoners who were held at black sites and moved to Gitmo only in September 2006.”
Horton added, “Between 80 and 90 percent of the prisoners held there were, it turns out, not only not the "worst of the worst," they were in fact not terrorists at all but a bunch of nobodies picked up by Pakistani security and Afghan warlords in exchange for bounty payments from the Americans--while the real people for whom Guantanamo was designed, 600-800 Taliban and Al Qaeda leaders, were allowed to go free when Dick Cheney gave the green light to Operation Evil Airlift so the Pakistanis could remove them from Kunduz in November 2001.”
Horton says that, “Rather than acknowledge the horrendous mistakes that were made, Miller and his colleagues want to blame the lawyers, which explains this McCarthyite measure. But it's real purpose is to shift attention away from the fact that the Gitmo prisoners will by and large be sent home after determinations by military intelligence and the courts (and usually by conservative Republican judges) that they were the wrong people who never should have been held at Gitmo in the first place.”
The House provision directs an investigation of military or civilian lawyers
when there is a "reasonable suspicion" that they have engaged in any conduct or practice that interferes with the operations at Guantanamo; violates any Department of Defense policy or law within the inspector general's jurisdiction, or generates any "material risk to a member of the U.S. Armed Forces."
In a letter Wednesday to Senate Armed Services Committee Chairman Carl Levin, a Michigan Democrat, and senior Republican Sen. John McCain of Arizona, Carolyn Lamm, president of the American Bar Association said the inspector general provision will have a "chilling effect" on the ability of lawyers to give zealous advocacy and effective assistance of counsel to their Guantanamo clients.
"It will compromise the professional independence of counsel and divert already starved defense resources from defending clients to defending the conduct, practices, actions and strategies of their lawyers," she wrote. Lamm added that the Department of Justice, not the Department of Defense, is the appropriate agency to investigate any legal wrongdoing by these lawyers.
The National Institute of Military Justice and the American Civil Liberties
Union joined the ABA on Thursday in criticizing the Defense bill provision.
Rep. Miller's press spokesman reportedly said the provision is "focused on investigating attorneys who may have outed covert operatives in the field.
Anthony Romero, executive director of the ACLU, said in a statement, "The
members of the John Adams Project at all times adhered to the law and fulfilled their ethical obligations while representing their clients. In addition, the members of the John Adams Project complied with every requirement of the Joint Task Force and every protective order of the military Commissions."
American University’s Vladeck said he had hoped the strong criticism of conservative attacks on the so-called al Qaeda 7 -- Obama Administration lawyers who had prior service as detainee lawyers -- and of Bush Administration official Cully Stimson's critique of law firms engaged in Guantanamo litigation would have ended these attempts to hinder lawyers in their defense of detainees.
"To whatever extent this is a concerted attack, it's manifesting frustration
with the courts more than with lawyers," he suggested. "But courts, particularly the Supreme Court, are far less politically palpable targets. It's always easier to go after the lawyers."
The controversy over Guantanamo defense lawyers was set off last March when a group of conservatives headed by Liz Cheney, the daughter of former Vice President Dick Cheney, launched an effort to label seven Justice Department lawyers who previously defended Guantanamo detainees as terrorist sympathizers.
But many other conservatives were quick to attack Cheney’s proposal. They included Ted Olson, who served as George W. Bush’s Solicitor General. who called efforts to demonize detainee defense lawyers as antithetical to American values.
"The ethos of the bar is built on the idea that lawyers will represent both the popular and the unpopular, so that everyone has access to justice. Despite the horrible Sept. 11, 2001, attacks, this is still proudly held as a basic tenet of our profession," Olson wrote.