Democrats and the McCarthyite attack on detainee lawyers

A provision passed by a House committee would require an investigation into lawyers for doing their jobs

Published May 27, 2010 11:28AM (EDT)

(updated below - Update II - Update III)

Over at Balkinization, Law Professor Steve Vladeck has done a superb job highlighting a truly vile provision in the National Defense Authorization Act for FY2011, which directs the Pentagon's Inspector General to "conduct an investigation of the conduct and practices of lawyers" who have represented Guantanamo detainees and then report back to Congress.  That provision is the brainchild of GOP Rep. Jeff Miller of Florida, who has labeled efforts to represent detainees (specifically as part of the John Adams Project) a "treacherous enterprise" and smeared those lawyers as "disloyal."  Vladeck thoroughly documents how the lawyer conduct that is targeted by the mandated investigation is so broad that it could easily encompass every act of defending Guantanamo detainees, and thus, standing alone, could serve to intimidate and deter lawyers from vigorously representing those detainees in the future.  

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.

Writing at Matt Yglesias' Center for American Progress blog, CAP's Satyam Khanna says this:

The DOD budget bill is a pretty huge document; so I would hope this was furtively slipped in by some GOP staffer, to be removed shortly.

Yes, it sure would be nice to believe that the Democrats who control Congress -- and who control the House Armed Services Committee which passed the bill containing this provision -- somehow had nothing to do with its inclusion.  Unfortunately (and unsurprisingly), that's simply not the case, as The New York Times' Charlie Savage explains:

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.  Detainee lawyers argue that even with such modifications, Mr. Miller’s amendment is broad enough to give pause to all lawyers representing Guantánamo detainees -- including the far larger numbers who have sought judicial hearings for prisoners who contend that they are not terrorists and are being held by mistake.  

Those "modifications" are cosmetic at best, as Vladeck explains:

[T]he "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.

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.

* * * * *

I have a contribution in The New York Times this morning on Obama and the BP oil spill which relates to a variety of issues, including the excessive role the President is expected to play in our political culture.


UPDATE:  This solid Newsweek article details how BP and government officials have been working jointly to prevent media coverage (especially photographers) of the oil spill's impact.


UPDATE II:  In comments, the blogger Brendan objects to my argument that Obama bears no meaningful blame for the BP oil spill, and elaborates on that argument at his own blog.  In essence, he argues -- with a fair amount of documentation -- that the Interior Department has long been staffed with oil industry hacks, that Obama both failed to clean any of it out and even appointed his own regulators who are far too close to industry (beginning with Interior Secretary Ken Salazar), and that this coziness is what led to the spill.  His best piece of evidence is this Washington Post article, which details how BP won an exemption from the Obama administration from the requirement of preparing an environmental impact study for this very drilling operation.

I'm still unconvinced that Obama has failed to do anything post-spill that he should have done (i.e., things he has the legal authority to do and that would have made a difference), but Brendan makes a strong case that the administration's general closeness to industry played a part (at least) in what happened here.  Read it and decide for yourself.


UPDATE III:  The White House has now released its official position on the National Defense Authorization Act for FY2011, identifying the provisions to which it objects and even threatening to veto some.   The provision requiring an investigation of Guantanamo lawyers is not included in the White House's objections; about that, they have said nothing.

By Glenn Greenwald

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