Maybe it's an instance of bad cases making bad law. In response to suspicions that attorneys for Guantanamo detainees violated federal intelligence laws by supplying their clients with pictures of covert CIA agents, the House Armed Services Committee has proposed legislation that seems likely and is perhaps intended to substantially hinder the ability of lawyers to provide detainees with meaningful representation. A provision inserted into the Defense Authorization Act would authorize the Department of Defense Inspector General to investigate Guantanamo defense attorneys for vaguely and broadly defined infractions like "interfering" with DoD operations at Guantanamo. (Steven Valdeck critiques the bill at balkinblogspot.com.)
It's difficult to discern a legitimate purpose or necessity for this. The Justice Department has all the power it needs to investigate alleged crimes by attorneys for detainees -- a power it does not seem to be shy about exercising. As I noted here, Special Prosecutor Patrick Fitzgerald is investigating the alleged involvement of attorneys with the ACLU's John Adams Project in outing covert agents. (If only the administration were equally enthusiastic about accountability for agents who engaged in torture or government lawyers who justified it.) With a few exceptions, the Fitzgerald investigation has, so far, generated relatively little publicity. (Newsweek reported on it here, the Washington Times offers a right-wing perspective on it, firedoglake.com debunks it from the left.)
Who knows how the investigation will progress or conclude? But it could conceivably prove less consequential, and less damaging to civil liberty, than proposed legislation empowering the Defense Department to investigate irritating defense attorneys who interfere with its work (as committed advocates for detainees are likely to do). This bill demands extensive scrutiny.
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