The American Bar Association, the American Civil Liberties Union, and numerous other legal organizations are demanding that the Senate Armed Services Committee reject a provision in a House of Representatives bill that would mandate an investigation into lawyers representing Guantánamo Bay detainees.
The National Defense Authorization Act for Fiscal 2011 requires the inspector general to investigate "the conduct and practices" of Guantánamo 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 Guantánamo 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 Scott Horton, Constitutional law expert and contributing editor at Harper’s Magazine, told IPS, "This provision was sponsored by Florida Republican Jeff Miller and it’s another chapter in the efforts of political figures close to [former vice president] Dick Cheney to smear the habeas lawyers."
"Why?" Horton asked. "Things haven’t been going well for the GOP’s [Republicans’] 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."
"Rather than acknowledge the horrendous mistakes that were made, Miller and his colleagues want to blame the lawyers," he said.
In a letter Wednesday to Senate Armed Services Committee Chair 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 Guantánamo 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 Guantánamo 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 Guantánamo defense lawyers was set off last March when a group of conservatives headed by Liz Cheney, the daughter of Dick Cheney, launched an effort to label seven Justice Department lawyers who previously defended Guantánamo 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. He called efforts to demonize detainee defense lawyers antithetical to U.S. 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 Sep. 11, 2001, attacks, this is still proudly held as a basic tenet of our profession," Olson wrote.
(Inter Press Service)
