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While DADT might be the major focus of attention for the National Defense Authorization Act being considered now in the House, there's a provision in it that should have some light shined on it.

WASHINGTON — A provision tucked into a defense bill before Congress would direct the Pentagon’s inspector general to investigate any suspected misconduct by lawyers for Guantánamo Bay detainees, opening a new chapter in a recurrent political controversy over legal ethics and the representation of terrorism suspects....

The provision would require the Pentagon inspector general to investigate instances in which there was “reasonable suspicion” that lawyers for detainees violated a Pentagon policy, generated “any material risk” to a member of the armed forces, violated a law under the inspector general’s exclusive jurisdiction, or otherwise “interfered with the operations” of the military prison at Guantánamo.

The inspector general would be required to report back to Congress within 90 days after the provision became law about any steps the Pentagon had taken in response to such conduct by either civilian or military lawyers.

Lawyers for Guantánamo detainees have reacted with outrage to the proposal, saying it would have a chilling effect on their efforts to help detainees get habeas corpus hearings or to defend them in military commission trials. They are organizing to try to persuade Congress to strip the language before enacting the final bill, which must also still pass the Senate.

“No lawyers could possibly predict what conduct might fall within the law,” said David Remes, who represents several detainees. “It would therefore be impossible for Guantánamo lawyers to represent their clients effectively and zealously.”

The amendment was introduced by GOP Rep. Jeff Miller, who calls the John Adams Project, the combined effort of the ACLU and the National Association of Criminal Defense Lawyers to assist military lawyers defending detainees, a "treacherous enterprise." Democrats worked with Miller in committee to get this in the bill.

Glenn details the background of the efforts by the extreme, Cheneyite Right to attack these lawyers.

This is all an outgrowth of the incomparably repellent McCarthyite, "Al Qaeda 7" campaign by Bill Kristol and Liz Cheney to smear detainee lawyers as disloyal Terrorist lovers, and more broadly, of the endless fear-mongering over Terrorism that continues to grip the U.S. Government.  The Weekly Standard has long been targeting the John Adams lawyers for doing their job (i.e., seeking the identity of CIA interrogators who tortured their clients), and that magazine now claims that it's the CIA that is demanding an investigation into these lawyers (Look Forward, Not Backward is, as we've seen repeatedly, only available for torturers and criminal eavesdroppers).  Reflecting this intensifying mood is the latest hysterical right-wing book, this one by anti-Islam obsessive (and media favorite) Andy McCarthy, who warns -- in the title -- that "Islam and the Left" are jointly engaged in a "Grand Jihad" to "Sabotage America" (the blurbs and summaries of his book are so inane and extreme that, despite how repulsive is this screed, it's difficult to suppress one's laughter when reading them; based on small book excerpts alone, Conor Friedersdorf documents how McCarthy's book is suffused with lies).  This is the McCarthyite fever swamp that is the genesis of this lawyer-targeted provision.



This is yet another example of repellent, fear-based policies that could not be (or at least were not) enacted during the Bush years yet are finding new life under Democratic Party rule.  Recall that Bush Pentagon official Cully Stimson was actually forced to apologize for suggesting that lawyers who represented Guantanamo detainees were engaged in disloyal and improper acts.  Yet with the Democrats in control of Washington, a provision grounded in exactly that rotted premise has now been unanimously reported out of a major House Committee.  There are still barriers it has to overcome in order to become law -- including a House floor vote, a mark-up in the Senate, and then, if it makes it that far, the President's signature -- so it's still possible it can be stopped.  But for that to happen, Democrats are going to have to insist on its removal.  It remains to be seen if they are willing to do that.

At any one of those points--the House floor vote, the Senate mark-up, conference, or the President's desk--this provision needs to be killed. The attacks on lawyers from Liz Cheney and crew received condemnation from across the political spectrum, including a host of  conservative legal scholars. It has no place in this legislation.

Originally posted to Daily Kos on Thu May 27, 2010 at 02:16 PM PDT.

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Comment Preferences

  •  GOPers are going wacko on DADT (5+ / 0-)

    Republicans secret dream = the impeachment of Bo the Dog LOL

    by LaurenMonica on Thu May 27, 2010 at 02:18:22 PM PDT

  •  Kill the lawyers and intellectuals (14+ / 0-)

    It's almost like the Republicans are determined to turn the USA into Indonesia circa 1961.

    The Tea Party: Want to take our country back. Sane Americans: Want to take our country forward.

    by jhecht on Thu May 27, 2010 at 02:19:16 PM PDT

    •  or Pakistan a year ago. Great company the US has (7+ / 0-)

      been keeping lately . . . .

      Fear is the mind-killer - Frank Herbert, Dune

      by p gorden lippy on Thu May 27, 2010 at 02:27:56 PM PDT

      [ Parent ]

    •  Lawyers defending unpopular clients (12+ / 0-)

      are the Constitution's first line of defense.

      Resist corporate serfdom.

      by Mayfly on Thu May 27, 2010 at 02:29:22 PM PDT

      [ Parent ]

    •  There's always been a deep strain (2+ / 0-)
      Recommended by:
      Garrett, Mayfly

      of anti-intellectualism in the US. And it has been powerfully tapped by almost everyone from time to time. Now we have the impetus coming from evangelical notions of egalitarianism so it couples the native anti-intellectualism with a disturbing religious intransigence.

    •  Let's be clear what this is about (0+ / 0-)

      The Weekly Standard has long been targeting the John Adams lawyers for doing their job (i.e., seeking the identity of CIA interrogators who tortured their clients), and that magazine now claims that it's the CIA that is demanding an investigation into these lawyers

      What the John Adams lawyers have been doing is taking pictures of people who they believe are CIA agents and contractors and then showing them to alleged terrorists to ask them if they recognize them.

      There is obvious potential for exposure of these people and terrorist attacks on them or their families.

      Compare with the Valerie Plame case for edification.

      •  Linky? (3+ / 0-)

        Because that's quite a charge.

        If your definition of good is my definition of unacceptable, then I am indeed the enemy of the good.

        by Nada Lemming on Thu May 27, 2010 at 06:45:13 PM PDT

        [ Parent ]

        •  It's true. (1+ / 0-)
          Recommended by:
          p gorden lippy

          Those lawyers have the gall to think their clients have the right to face their accusers or something. Such whiners!! So you don't get to do a cross-examination …

          “If I can't dance to it, it's not my revolution.” — Emma Goldman

          by Jyrinx on Thu May 27, 2010 at 10:10:54 PM PDT

          [ Parent ]

        •  From Newsweek (0+ / 0-)

          The probe was triggered by the discovery last year of about 20 color photographs of CIA officials in the cell of Mustafa Ahmed al-Hawsawi, an alleged financier of the 9/11 attacks, say three current and former government officials who asked not to be identified talking about an ongoing case.

          The photos included "paparazzi style" snapshots of covert CIA officers on the street and in other public places, says one former official, an indication that private investigators had taken them on the sly to identify agency interrogators. When told of the discovery, CIA officials immediately grew alarmed that the photos had been shared among the 9/11 defendants, including alleged mastermind Khalid Sheikh Mohammed. (The judge in charge of the military-commission case at the time had ruled that because some defendants, including Mohammed, were representing themselves, they could meet privately with their alleged co-conspirators and share material relevant to their defense.) The photos in al-Hawsawi's cell were not captioned with the agents' identities. But "there was real concern" that the pictures could be used to identify covert officers, resulting in agents becoming the targets of Qaeda revenge plots, says the former official. "These guys are killers--and KSM has made it clear they're going to look for retribution."

          How real a threat the incident posed is far from clear, nor is it known which defendant got the photos first. But after the CIA filed a criminal referral with Justice, the FBI dispatched agents to Guantánamo to question military defense lawyers. The military lawyers representing al-Hawsawi were soon cleared. But one focus is on civilian lawyers retained by the John Adams Project--an effort the American Civil Liberties Union runs to provide topnotch counsel for the most high-profile Gitmo detainees. Anthony Romero, the ACLU's executive director, confirms the project hired private investigators to track down CIA officers involved in aggressive interrogation tactics. "It would be an essential part of any defense to cross-examine the perpetrators of torture," he says, adding, "To our knowledge, the 9/11 defendants were not told the identities of the CIA officers."

      •  That's perfectly legal. (1+ / 0-)
        Recommended by:
        p gorden lippy

        You know, if those detainees had the right to face their accusers the way the Constitution guarantees …

        “If I can't dance to it, it's not my revolution.” — Emma Goldman

        by Jyrinx on Thu May 27, 2010 at 10:09:46 PM PDT

        [ Parent ]

        •  Well, it may not be legal (0+ / 0-)

          Idea of this investigation is to clarify exactly what the John Adams Project lawyers have done and then to prosecute if they have violated the law.

          •  If there is any probable cause to investigate, (0+ / 0-)

            they'll be investigated, and not before. There is no need for a statutory witch hunt.

            “If I can't dance to it, it's not my revolution.” — Emma Goldman

            by Jyrinx on Fri May 28, 2010 at 04:44:24 PM PDT

            [ Parent ]

            •  Will they really? (0+ / 0-)

              Let's remember that many of the new Justice Department employees are former members of the efforts to defend the people incarcerated at Guantanamo Bay.  Presumably they believe that the John Adams efforts are appropriate.

              I'll agree that we don't want statutory witch hunts.  I think one question on this is whether there is precedent for Congress requiring law enforcement investigations.  If there is substantial precedent then that would presumably establish that such investigations are not "statutory witch hunts" but are instead normal congressional actions.  If this is unprecedented then it would be much more questionable.

  •  steve vladeck (10+ / 0-)

    at balkinization:

    With these observations in mind, the potential practical effect of this provision is deeply disturbing. One can only imagine the kind of chilling effect it might have on lawyers to know that their efforts to provide the Guantánamo detainees with the meaningful access to the courts required by the Supreme Court in Boumediene will nevertheless subject them to the scrutiny of the House and Senate Armed Services Committees. Moreover, the "reasonable suspicion" standard could itself force counsel to think twice before challenging extant DoD policies governing their interactions with their clients, thereby interfering with counsel’s ability zealously to represent their clients. The mere threat of investigation could easily force compliance with troubling policies limiting lawyer-client interaction that counsel might otherwise seek to challenge. Say what you will about the merits of these cases, but I had thought we’d long-since settled the appropriateness of allowing lawyers in these cases vigorously to represent their clients in court, consistent with the highest traditions of the profession.

    The cold passion for truth hunts in no pack. -Robinson Jeffers

    by Laurence Lewis on Thu May 27, 2010 at 02:20:13 PM PDT

  •  OUTRAGEOUS doesn't even begin (15+ / 0-)

    to say it !!!!!!!

    The lawyers for the detainees have been nothing but HEROS ! They have been standing up for people who have been made voiceless and largely faceless.

    Who are the House Democrats who voted for this provision?

          Standing for justice and accountability,
                      For Dan,

    Planning a March for Legal Accountability for Torture in Washington, DC, September 4th, 2010, the Saturday of Labour Day Weekend.

    by Chacounne on Thu May 27, 2010 at 02:23:11 PM PDT

    •  Agreed. (8+ / 0-)

      I'm damn near speechless.  How can anyone who cares about the rule of law allow this provision to survive?

      •  Where do we find out who voted for it (6+ / 0-)

        in committee ?

            Steaming and trying to channel my outrage,
                        For Dan,

        Planning a March for Legal Accountability for Torture in Washington, DC, September 4th, 2010, the Saturday of Labour Day Weekend.

        by Chacounne on Thu May 27, 2010 at 02:40:29 PM PDT

        [ Parent ]

        •  Still looking... (5+ / 0-)

          I see this in the Charlie Savage piece in the NYTimes but there are no names listed:

          Democrats on the committee agreed to Mr. 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. Another enabled Attorney General Eric H. Holder Jr. and Defense Secretary Robert M. Gates to halt such an inquiry if it would interfere with a related criminal investigation.

          Like you, I'd really like to know which democrats supported this.

          The Republicans are coming...

          by dclawyer06 on Thu May 27, 2010 at 03:20:07 PM PDT

          [ Parent ]

          •  Thanks very much. (5+ / 0-)

            The problem isn't "reasonable suspicion", the problem is, of course, the definition of "interfere". Any lawsuits interfere to a greater or lesser extant with the operations at Gauntanamo.

             Standing with you for justice and accountability,
                            For Dan,

            Planning a March for Legal Accountability for Torture in Washington, DC, September 4th, 2010, the Saturday of Labour Day Weekend.

            by Chacounne on Thu May 27, 2010 at 03:30:38 PM PDT

            [ Parent ]

        •  Sorry, here ya go (4+ / 0-)

          It was added late last week, shortly before the House Armed Services Committee unanimously approved the legislation.

          They all voted for it, lol.
          All the democrats on the House Armed Services Committee.
          Or at least wanted it reported out of committee.

          The Republicans are coming...

          by dclawyer06 on Thu May 27, 2010 at 03:48:46 PM PDT

          [ Parent ]

          •  Here's the list of Democrats (5+ / 0-)

            To me the most disappointing names on the list are:
            Joe Sestak and Rick Larsen (He was Dan's congressman), but there's plenty of shame to go around.

                  Sigh !
                  For Dan,


            Ike Skelton, Missouri, Chairman

            John Spratt, South Carolina
            Solomon P. Ortiz, Texas

            Gene Taylor, Mississippi

            Silvestre Reyes, Texas

            Vic Snyder, Arkansas
            Adam Smith, Washington
            Loretta Sanchez, California
            Mike McIntyre, North Carolina

            Robert A. Brady, Pennsylvania

            Robert Andrews, New Jersey

            Susan A. Davis, California
            James R. Langevin, Rhode Island

            Rick Larsen, Washington
            Jim Cooper, Tennessee

            Jim Marshall, Georgia

            Madeleine Z. Bordallo, Guam

            Brad Ellsworth, Indiana

            Carol Shea-Porter, New Hampshire
            Joe Courtney, Connecticut

            David Loebsack, Iowa

            Joe Sestak, Pennsylvania

            Gabrielle Giffords, Arizona
            Niki Tsongas, Massachusetts
            Glenn Nye, Virginia
            Chellie Pingree, Maine
            Larry Kissell, North Carolina
            Martin Heinrich, New Mexico
            Frank M. Kratovil, Jr., Maryland
            Bobby Bright, Alabama
            Scott Murphy, NewYork
            William L. Owens, NewYork
            John Garamendi, California
            Mark Critz, Pennsylvania
            Leonard Boswell, Iowa
            Dan Boren, Oklahoma
            Hank Johnson, Georgia

            Planning a March for Legal Accountability for Torture in Washington, DC, September 4th, 2010, the Saturday of Labour Day Weekend.

            by Chacounne on Thu May 27, 2010 at 04:09:51 PM PDT

            [ Parent ]

            •  a lot of those names are no surprise , but Larsen (0+ / 0-)

              is my Rep. with his office 3 blocks away from where I live. I have been there a few times and now plan to pay another visit.
              This is just his Bellingham office but It will get to him. This is also where every Friday, in front of that Federal bldg.,people stand with their signs. One lady's sign said 'Rick Never saw military appropriations amendment he didn't like'. Most of the signs are about getting out of Afghanistan, even during the insurance reform Bill uproar.
              A couple of weeks ago I got a call about a group meeting that had a candidate they wanted to run against Larsen. There was a 'special speaker' coming and I asked her about his background, (because I didn't know if it was a Repug group or not), and she mentioned he had worked on the Dennis Kucinich campaign. It was all I needed to know, and I want to now know more about their group.
              (I had to be elsewhere that night, and had forgotten about it, until now.)

              without the ants the rainforest dies

              by aliasalias on Thu May 27, 2010 at 10:22:44 PM PDT

              [ Parent ]

      •  Need to ask Obama (6+ / 0-)

        It's his DOJ.

        Obama owns it now.

        When war profiteering ends America will start winning its wars again.

        by saildude on Thu May 27, 2010 at 03:13:31 PM PDT

        [ Parent ]

    •  So: (7+ / 0-)

      (A) interfered with the operations of the Department of Defense at Naval Station, Guantanamo Bay, Cuba, relating to [non-citizens detained at Guantánamo];

      Which could easily mean any lawyer representing clients at Guantanamo who are involved in lawsuits regarding the conditions under which they are held.

      It could also mean the lawyers representing Omar Khadr who complained during a hearing recently about the fact that the authorities wanted to use "eyes and ears" on him while transporting him to court, contrary to past practice. (He is blind in one eye and had, at that point, what a doctor said was conjunctivitis and high blood pressure)

      This gets only worse on reviewing it.

            Standing for justice and accountability,
                     For Dan,

      Planning a March for Legal Accountability for Torture in Washington, DC, September 4th, 2010, the Saturday of Labour Day Weekend.

      by Chacounne on Thu May 27, 2010 at 02:51:10 PM PDT

      [ Parent ]

  •  REPUBLICANTs pandering to racists.. (3+ / 0-)
    Recommended by:
    bay of arizona, cybersaur, Mayfly

    They are so godawful bad. It's just part of their racist pandering.

    Democrats can't vote for this invasion of defendants' rights. This amendment must die, but it plays well for Democrats into the meme of soft-pedaling their opposition to the Repugnants' Daddy vote.

    In a word: F**k Republicans before they get a chance to f**k you.

    "They only call it class war when we fight back!" [h/t buhdydharma]

    by ezdidit on Thu May 27, 2010 at 02:26:28 PM PDT

  •  Sounds great ... (4+ / 0-)

    ... if you want to provide the detainees perfect grounds to have any judgments against them thrown out for inadequate representation.  

    50% + 1: All Senate candidates should must the pledgeGo Nuclear Now!!!

    by KingBolete on Thu May 27, 2010 at 02:30:53 PM PDT

  •  It’s more than a war on lawyers. (5+ / 0-)

    It’s a war on freedom. "War on lawyers" has that GOP sloganeering feel.

  •  I find the lack of comments in this diary sad (9+ / 0-)

    It may just show how toxic this issue is, but you can bet when Bush was in office this would of had many more comments.

    Just as sad is the fact that it took UNICEF this long to come to the defense on the last Child Soldier being held in Gitmo.

    "Maybe the American eagle should be replaced with the ostrich."

    by SmileySam on Thu May 27, 2010 at 02:45:29 PM PDT

  •  This is only part of a much larger fight (6+ / 0-)

    There are provisions in the Patriot Act and proposed as amendments to the Patriot Act which would essentially do away with the attorney-client priviledge for any attorney working for anyone who is suspected of being a terrorist or terrorist sympathizer.

  •  Obama, BTW, is conspicuously silent (6+ / 0-)

    on this, despite releasing his detailed likes and dislikes and veto threats over lots of other minutia.

    “If I can't dance to it, it's not my revolution.” — Emma Goldman

    by Jyrinx on Thu May 27, 2010 at 02:49:38 PM PDT

  •  The already existing situation going in (4+ / 0-)
    Recommended by:
    Chacounne, Mayfly, Johnny Q, m00finsan

    It would therefore be impossible for Guantánamo lawyers to represent their clients effectively and zealously.

    would now become worse.

  •  Rep. Miller Is Un-American (3+ / 0-)
    Recommended by:
    blue book, Mayfly, m00finsan

    Yes, but Rep. Jeff Miller is un-American. What kind of person would strike at a core American value like the right to defend yourself from (possibly unjust) prosecution? Did this person grow up under a rock?

    He's attacking out rights, and he shouldn't be in Congress to begin with.

  •  Why Are the Torturers Going to Jail? (3+ / 0-)
    Recommended by:
    Chacounne, Mayfly, m00finsan

    And, why aren't the torturers going to jail? When will this administration get around to prosecuting self-proclaimed torturers like Dick Cheney?

    Until we prosecute officials for crimes like setting up torture in our name, we will never silence these people, and folks (I use the term loosely) like Rep. Miller will pop up to annoy us.

  •  The torturers used by our government (6+ / 0-)

    must be identified and if not prosecuted at least be under surveillance for the rest of their lives. They should be forced to register where and when they move similar to what sex offenders are required to do. No jobs for these goons in law enforcement, the prison system or any other job that puts them as the final authority over a confined person.

    If they thought they were performing a patriotic act they were wrong and now they must pay for their crimes.

    These war criminals should not be allowed to live anonymously among decent folk.

    When war profiteering ends America will start winning its wars again.

    by saildude on Thu May 27, 2010 at 03:08:24 PM PDT

  •  Miller and those who (4+ / 0-)
    Recommended by:
    Garrett, aliasalias, Mayfly, m00finsan

    try to strip rights from other people should be stripped of their rights first to let them experience what they're advocating for firsthand.

    If Miller and those who agree with him deny unpopular defendants their rights under the Fourth, Sixth, Eighth, Fourteenth, and other Amendments, then it is only fair that they be made the test subjects to their law before their injustice is applied to anyone else. Arrest them, try them, convict them, and sentence them according to the rules they're trying to create today. That means no lawyers to defend them, since, by attempting to subvert the Constitution, they have obviously betrayed America.

  •  Ain't it great. (1+ / 0-)
    Recommended by:
    Johnny Q

    The march of fascism continues apace at Gitmo (albeit under new, dynamic Big-Boy Pants(tm) Dem management).  Meanwhile libruls prepare to celebrate a triumphal achievement in the repeal of DADT.

    Isn't identity politics great though!  What an achievement it will be.  Coming soon to a blacksite near you: openly gay torturers.

    Yay libruls!

    Please don't feed the security state.

  •  Change? (1+ / 0-)
    Recommended by:

    Why are people who voted for Change so surprised by politics as usual?  We didn't have a progressive in the race, so we elected a centrist, pro-business, Democrat.   Why are people surprised that a lot of Bush era abuses are getting enshrined into the permanent policy of this country, instead of being prosecuted for the war crimes they are?  Obama has personally authorized the extra-judicial killing of an American.  Think about it, a man who is supposed to be versed in the laws and traditions of our country has ordered the murder of an American citizen that is SUSPECTED of supporting terrorism.  Why are people shocked that they are letting the Republicans give them an excuse to not repeal DADT.

  •   absolutely outrageous (3+ / 0-)
    Recommended by:
    Garrett, aliasalias, Johnny Q

    The effort to have the Pentagon "investigate any suspected misconduct by lawyers for Guantánamo Bay detainees.." is absolutely outrageous. As a former Marine Corps Infantry Officer who, among other things, taught Military Law at the Naval Academy, I am extremely proud of the work some Military Lawyers have done at Guantanamo. Their work is one of the few bright spots that has emerged from our treatment of detainees.

  •  Just spoke to Rep. Jared Polis' staffperson on (1+ / 0-)
    Recommended by:

    this.  He was alarmed to hear of it, and said he would discuss it right away with the Congressman.  I think he was being genuine, as he was familiar with John Adams' example.  He expressed hope that a light would be shined on this.

  •  Update: Rep. Polis responds personally (0+ / 0-)

    Representative Polis just responded personally to my e-mail, indicating that he had CC'd his defense staff person on my e-mail and indicating that they will begin looking into it.

  •  I'd be outraged (1+ / 0-)
    Recommended by:

    at the war on lawyers, but I'm clapping for Tinkerbell instead.  I'm so much happier this way.    

    If your definition of good is my definition of unacceptable, then I am indeed the enemy of the good.

    by Nada Lemming on Thu May 27, 2010 at 06:43:57 PM PDT

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