Investigating the ACLU

For the ACLU's sake, I hope it has very good lawyers representing it in what TPM accurately calls a potentially explosive investigation of ACLU's alleged involvement in outing CIA officers to the 9/11 defendants (reported by Newsweek's Michael Isikoff on March 19th). Patrick Fitzgerald has been appointed to lead the investigation, and Isikoff writes, ACLU Executive Director Anthony Romero has confirmed that the ACLU "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,' (Romero) says, adding, 'To our knowledge, the 9/11 defendants were not told the identities of the CIA officers.'"

This is an astonishing and incredibly reckless admission.  First, if you're under investigation by Patrick Fitzgerald you should probably exercise your right to remain silent, or, at least, clear any statements with your attorney, as I imagine Romero, a law school graduate, has belatedly learned.  A story in the Washington Times on the investigation notes that "Joshua Dratel, a lawyer representing the John Adams Project, declined to comment directly on whether his group hired investigators to photograph CIA officers and supply them to military defense lawyers."  The ACLU press office is now advising staff to refer all press inquiries about the Justice Department investigation to the national press office and to "stick to these points when discussing this matter internally or with affiliate board members."
1) John Adams Project attorneys at all times adhered to the law and fulfilled their ethical obligations while representing their clients.

2) John Adams Project attorneys complied with every requirement of the Joint Task Force and every protective order of the military commissions.
Second, Romero clearly implies that agents hired by the ACLU were tracking CIA agents with the express purpose of identifying them, for cross-examination.  (And it may or may not be worth noting that the ACLU's exculpatory talking points explicitly cite "John Adams Project attorneys" but say nothing about other ACLU agents or staff.)  Responding to the charge that CIA agents were outed, Romero offers a sort of non-denial denial: "To our knowledge, the 9/11 defendants were not told the identities of the CIA officers."  Based on my own experiences with his responses to criticism or accusations of misconduct, I'd ask the obvious follow-up: "To your knowledge, were the 9/11 defendants shown photographs of the CIA officers?"

Third, the ACLU may have been operating in a gray area of attorney-client privilege, since it's not clear that ACLU affiliated attorneys were actually, formally representing the 9/11 defendants.  According to Denny LeBoeuf, former director of the recently dismantled John Adams Project, ACLU affiliated attorneys directly represented two of the five alleged 9/11 co-conspirators in competency proceedings, acting as stand-by counsel to the three others who represented themselves.   
Nevertheless, according to an ACLU budget report (noted here), the Project spent about $2 million in attorney fees in its first year of operation, between April 2008 and April 2009, and had reportedly spent a total of about $4 million when it was closed down some 6 months later in the fall of 2009.  Romero's acknowledgment that the ACLU had hired private investigators to trail CIA agents may explain some of the John Adams Project expenditures.  

What if the ACLU did break the law by outing CIA agents in the interests of identifying torturers?  If the legal case against the organization were clear, the moral case would still be cloudy.  It doesn't seem likely that high ranking Bush administration officials or agents will be held accountable for torture and other lawless acts; even the telecoms have been immunized for enabling warrantless surveillance.  Prosecuting the ACLU for outing CIA agents might be legal, but all things considered, it might not be just.  But, it would be explosive indeed.  
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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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