The American Bar Association and other legal organizations are urging leaders of the Senate Armed Services Committee to resist a provision in a House defense bill that directs the Department of Defense's inspector general to investigate 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 bill is pending on the House floor where debate and passage are expected this week.
"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."
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, D-Mich., and Minority Chairman John McCain, R-Ariz., ABA President Carolyn Lamm 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.
The provision was inserted into the Defense bill last week by Rep. Jeff Miller, R-Fla., who, at the time, 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.
Miller's press spokesman said the provision is "focused on investigating attorneys who may have outed covert operatives in the field. The key is 'may have.'"
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'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."