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‘McCarthyite’ provision in defense bill targets ACLU lawyers

By Muriel Kane
Thursday, May 27, 2010 12:28 EST
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The defense appropriations bill currently moving through the House of Representatives includes a measure which directs the Defense Department’s inspector general to investigate attorneys who may have “interfered with operations of the Department of Defense” while representing detainees at Guantanamo Bay and report back to Congress.

That measure has civil libertarians up in arms. Salon’s Glenn Greenwald, for example, described the “truly vile provision” as a “McCarthyite attack on detainee lawyers” and identified it as “the brainchild of GOP Rep. Jeff Miller of Florida, who has labeled efforts to represent detainees … a ‘treacherous enterprise” and smeared those lawyers as ‘disloyal.’”

According to ABC News, Rep. Miller “proposed the language to the bill because he was outraged by the allegations behind the Department of Justice investigation that is being led by U. S. Attorney Patrick Fitzgerald. Miller said it’s important to subject detainee defense lawyers to greater scrutiny in order to ‘identify any policy violations,’ that, he said, could compromise national security.”

The allegations cited by Miller became public knowledge last March, when it was revealed that the Justice Department had secretly been investigating whether lawyers involved with the ACLU’s John Adams Project had broken any laws in their attempts to to have detainees identify CIA interrogators who might have been involved in torture. When it appeared that the Justice Department was about to conclude that no crimes had been committed, the CIA complained and the department brought Fitzgerald in to resolve the dispute.

Since Fitzgerald’s investigation remains ongoing, Miller’s measure would seem to be intended primarily to drag the issue into the political arena and make it the subject of Congressional hearings during the period immediately prior to next fall’s elections.

The measure also substantially broadens the scope of the current investigations. According to law professor Steve Vladeck, it would mandate an investigation of any lawyer who might be suspected of having “interfered with the operations of the Department of Defense” with regard to Guantanamo detainees or of having “generated any material risk to a member of the Armed Forces of the United States.”

“Virtually every lawyer that has represented a detainee at Guantánamo has “interfered with the operations of the Department of Defense” at Guantánamo,” Vladeck observes. “This language would basically require the DoD IG to report to Congress on every lawyer who has represented a Guantánamo detainee at any time in the past eight years, including me.”

“One can only imagine the kind of chilling effect it might have on lawyers,” Vladeck adds. “The hard question, it seems to me, is whether these provisions would survive constitutional challenge. … It is the separation of powers itself that is implicated when Congress so directly interferes with constitutionally-protected legal representation.”

At the center of the dispute are photographs of CIA officers provided to certain detainees by ACLU lawyers. “Attorney General Eric Holder Jr. has tapped the Justice Department’s most feared prosecutor, Patrick Fitzgerald, to lead a sensitive investigation into whether defense lawyers at Guantánamo Bay compromised the identities of covert CIA officers,” Newsweek’s Michael Isikoff and Mark Hosenball wrote last March. “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.”

According to Isikoff and Hosenball, “The photos included ‘paparazzi style’ snapshots of covert CIA officers on the street and in other public places. … 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.”

Marcy Wheeler of FireDogLake quickly labeled these claims a “witch hunt” and explained, “The CIA, of course, is apoplectic that its interrogators might be tied to what they did to these detainees. So, in a brief to longtime CIA guy and now top Homeland Security advisor to Obama, John Brennan, they appear to be trying to suggest the John Adams project be investigated for IIPA violations. … DOJ has apparently brought in Patrick Fitzgerald (who knows a thing or two about IIPA violations) to try to resolve the dispute.”

The ACLU confirmed that it had hired private investigators to take the photographs but noted that “it would be an essential part of any defense to cross-examine the perpetrators of torture.” It also argued that laws against revealing the identities of covert CIA agents had not been broken because “the 9/11 defendants were not told the identities of the CIA officers.”

Muriel Kane
Muriel Kane
Muriel Kane is an associate editor at Raw Story. She joined Raw Story as a researcher in 2005, with a particular focus on the Jack Abramoff affair and other Bush administration scandals. She worked extensively with former investigative news managing editor Larisa Alexandrovna, with whom she has co-written numerous articles in addition to her own work. Prior to her association with Raw Story, she spent many years as an independent researcher and writer with a particular focus on history, literature, and contemporary social and political attitudes. Follow her on Twitter at @Muriel_Kane
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  • Thomas G Williams

    HOW DEFENCE LAWYERS DO THE JOB THEY ARE REQUIRED TO DO HOW DARE THEY ASK A DEFENDANT “IS THIS THE MAN WHO RAPED YOUR DAUGHTER TO MAKE YOU CONFESS OR IS THE ONE WHO BROKE US LAW WHILE TORTURING YOU?”

  • Corporate Indu$trial Complex

    .
    LAWYERS WHO THREATEN MIC WITH RULE OF LAW VULNERABLE TO DOMESTIC DRONE ATTACKS
    .

  • John

    The Eurocrazies in the Pentagon and GOP continue to support crimes against humanity. Might there be a Nuremberg II to bring these people to justice?????

  • SSpeedracer

    No. To the victor go the spoils. Would there have been a Nuremberg trial if the Nazi's won?

  • Gorgeous George Orwell

    “the brainchild of GOP Rep. Jeff Miller of Florida, who has labeled efforts to represent detainees … a 'treacherous enterprise” and smeared those lawyers as 'disloyal.'”

    And now Florida, unfortunately, is about to be smeared – karma is a…

  • lawfly

    If people are so sure these detainees are guilty of something, what's the harm in providing them with competent lawyers?

  • Petard

    If the GOP getsits way, our famous American principle of “innocent until proven guilty” is about to die. They love dog-piling on anybody singled out as having the thinnest suspicion related to terror. It's a fantasy witch-hunt for a dysfunctional mob.

  • Thomas G Williams

    Just to be clear what is your position on the RETHUGLICAN LAWS THAT HAVE BEEN PASSED that state that “PROOF OF INNOCENCE IS NOT A BAR TO CONVICTION OR A RIGHT TO OVERTURN A CONVICTION OR NULLIFY A CONVICTION OR A RIGHT TO SEEK RELEASE FROM INCARCERATION OR A RIGHT OT SEEK JURY NULLIFICATION”?

  • w00t

    The fucking GOP has nothing to do with it.

    Jesus man, can't you see? The good cop bad cop routine? Do you STILL believe in Obama? I don't want to get into details, but I am certain he was blackmailed and intimidated by the military shorty after his inauguration. Remember the Airforce One flyover of Manhattan? That was the day everything changed, and Obama stopped trying to fight the MIC.

    Look in the right direction: the military and the CIA. The relentless Fox News hate campaign. Something like that was unheard of during the Bush presidency. Obama is powerless to really stop it.

  • proudliberal1947

    Is there any doubt that the White Supremacist NAZI RACIST of the republican party are concerned with NOTHING but the destruction of the US Constitution Even in these times these COWARDS and TRAITORS defend to the death the TERRORIST of the BP oil company, using the republican NAZI tactic if you are not guilty you have nothing to fear this is the White Supremacist Racist Nazi thought, now WHY is the TERRORIST being granted the use of the 5th Amendment and defended by the COWARDS of America, it is this Anti American party that brought us to this point.

    Am I off topic NO, because these TRAITORS use every opportunity they can to strip American and the Defenders of Americans of their rights even now when the TERRORIST of BP oil have devastated the American Gulf Coast the White Supremacist Nazi and TRAITOR senator inhofe of oklahoma is on his kknees serving his TERRORIST friends with the old line the smaller companies (laughs up sleeve). This American TERRORIST who is protecting the rights of a FOREIGN INTEREST over the right of the AMEICAN people should be looked at real close this TERRORIST is wearing his AMDE in China lapel pin and waving his flag but he is still a TRAITOR to AMERICA and the people he took a OATH to protect.

  • scytherius

    The GOP is trying it's damndest to create a police state.

  • Paul_McClure

    The Nazi's and Stalin's Russians just executed who ever. A fake show trial wasn't required. They were ruling by fear rather than Allied deception. The trials only tried Axis war criminals rather than all war criminals. Just like today, Nations changes to post conflict administrations and were happy the conflict has passed and didn't pry. I guess some things don't change.

  • azhermit

    it's only a matter of time… all dissidents should get their passports ready.

  • Petard

    Wanna point me at any specific state or federal statute?

    Generally, US criminal courts aren't set up “prove” innocence. Only guilt can be “proven”. To do this, the prosecution must introduce evidence of guilt “beyond a reasonable doubt,” and the jury must agree that guilt has been shown “beyond a reasonable doubt.”

    When the defendant introduces evidence in his/her favor, the evidence need only cast “reasonable doubt” on his/her guilt. The evidence need not “prove” innocence to get an acquittal.

    So the phrase you quoted, wherever it comes from, sounds very awkward. If the so-called “proof of innocence” creates reasonable doubt on the defendant's guilt, there can be no conviction. If the so-called “proof of innocence” does not raise reasonable doubts about guilt (maybe it isn't believable), then conviction should result.

  • Guest

    Title 18 Section 798

  • Guest

    Title 6 Section 601

  • QuadSlacker

    I can't wait for the revelations as to who specifically at Goldman Sachs made bets against BP/Halliburton/TO, in the days leading up to Deepwater Horizon incident. As with 9/11, the trail of blood leads all the way to the top.

  • kasinca

    Rethugs have no respect for the constitution, the rule of law or the United States of America. They all seem to be ass clowns with warped minds.

  • kasinca

    The truth about the Bush Crime Family and all the crimes the GOP approved while in power, scares the hell out of rethuglicans.

  • strangely_enough

    Comparisons of the U.S. to Nazi Germany = awesome justification. Way to lower the bar. But, freedom's on the march…

  • strangely_enough

    Less chance of convictions.

  • strangely_enough

    “This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.”
    -”Justice” Scalia

  • strangely_enough

    So what did they disclose? That the defendants were tortured? I guess that's a “state secret.”

  • CHENEY IN JAIL NOW…..

    Cheney tortured and gave up CIA Plame…………… put him in jail already

  • strangely_enough

    Who knew John Adams was comsymp, er, islamofascist?

  • dennycrane

    Keep those donations coming, folks, the last bastion of liberty–ACLU.

  • Gabe O'Rielly

    For the love of God, learn punctuation!!! While I agree with a lot of what you are saying, reading your comment was painful.

  • TaterSalad

    Below is a video which shows how the typical, liberal, Obama/Biden of the “Crime, Inc. Party” think and understand the American political system. The S.E.I.U. takes full advantage of these voters, the AFL-CIO exploits them for power and then we have the U.A.W. International Union representatives using this ignorance in voter knowledge as a means to make gains in their agenda, to keep their cushy $$ wages and in keeping their “UAW” pension along with their G.M. pensions. All the while the U.A.W. workers are being paid $15.00 per hour with no defined pension. Sweet!

    http://www.youtube.com/watch?v=Jg0pDPK56Ys&feat…

    and………………Obama's Seven Lies in under 2 minutes:

    http://sroblog.com/2010/05/25/obama-7-lies-in-u…

  • TaterSalad

    Below is a video which shows how the typical, liberal, Obama/Biden of the “Crime, Inc. Party” think and understand the American political system. The S.E.I.U. takes full advantage of these voters, the AFL-CIO exploits them for power and then we have the U.A.W. International Union representatives using this ignorance in voter knowledge as a means to make gains in their agenda, to keep their cushy $$ wages and in keeping their “UAW” pension along with their G.M. pensions. All the while the U.A.W. workers are being paid $15.00 per hour with no defined pension. Sweet!

    http://www.youtube.com/watch?v=Jg0pDPK56Ys&feat…

    and………………Obama's Seven Lies in under 2 minutes:

    http://sroblog.com/2010/05/25/obama-7-lies-in-u…

  • johanb

    For Jeff Miller there is only one kind of good law, is one that protects all white Christian Americans and punishes everyone else.
    It is the old KKK way of thinking, which is not far away from Nazi or Fascist thinking or in other words a dictatorship of whites. No matter how bad a lot of these whites can be, like paying as little or no taxes, only wanting the benefits, stealing from the poor, corrupting financing, careless about the environment and pollution, not caring about climate change, not caring about people who just cannot pay their health care, definitely not caring about homeless and not living by their own religious rules, hating separation of church and state, hating rights of women, hating foreigners unless they can sell them something useless on which they can make a lot of profit, hypocrites, anti gay, even though at least 10% of them are and I can go on and on. These people really think they are the chosen ones, actually they are the evil ones as they causing this country to break up, increase hate, cause and love to make war and block the rights of all individuals who do not agree with them. They laugh at the Constitution, want to change all rights they don't like. Love the NRA and love to carry arms so they will be ready to kill when the times come.

  • Some Americans are Nazis

    Sieg Heil, Reichstag Member Miller

  • Ono

    There's a cart-n-horse problem, then. If you want the “likely guilty” suspect to have a different kind of trial than the “uncertain guilt” suspects, you have to have a pre-trial trial to see which process should be used.

    The existing trial system isn't perfect, sure, but layering a new pre-trial system on top isn't going to make things better.

  • stefanstanford

    Therefore, Obama protects the Rethuglicans by refusing to prosecute them for treason, lying about 9/11 and starting an illegal war.

    Wonderful, it sure feels like it's still Bush and the neocons pulling the strings.

    Meanwhile, according to the 7th Prophecy of the Hopi Indians:

    “This is the Seventh Sign: You will hear of the sea turning black, and many living things dying because of it.”

    Hmmmm…..

  • markusgarvey

    * OneMadLefty
    * One Pissed Off Lefty
    * Stefan M. Stanford
    * Help me figure this out…
    * In Peace
    * Soviet Amerika
    * OnePissedOffLefty
    * Barack Obama is George W. Bush
    * Oh my, is Bush gone?
    * Yeah F*cking Right
    * The Wise Tenth
    * Death to Treasonists
    * The Vile Plutocrat
    * LIVE FREE OR DIE
    * Live Free or Die
    * Peace
    * PEACE!
    * Peace, Love and Wisdom
    * Yeah, right…
    * Peace, Love, and Wisdom
    * LIVE FREEEEEEEEE OR DIEEEEEEE
    * Live Free or Die
    * Live Free 420
    * Live Free 420
    * stefanstanford
    * Count Dracula
    you know what…you dishonor Bob Marley…you are nothing but a little troll and have no clue what you are talking about…Rasta has a new name for you…it's “Bloodclat”…

  • Talis

    .Just when you think you have seen it all from the American Taliban traitors they try something like this.

  • Talis

    They should have lawyers.
    But cons are scared whiney and usually in the closet.
    They need to act all Jack Bauer to feel powerful.
    It is they that are the traitors to all this country should be.

  • Talis

    There have been quite a few deathrow cases where the courts ruled that the condemned was convicted with a fair trial and new evidence of his or her innocence has no bearing on that.

  • Talis

    w00t take it easy on the super conspiracy theories. :)

  • CarlPagan

    So, we can investigate whether or not ACLU lawyers broke the law, but not members of the US government or military/CIA/Xe/Blackwater? Sounds fair to me.

  • dennycrane

    The 900 day siege on Leningrad in WWII was regarded as the last stand for Russia:

    …”Everybody trapped in Leningrad was hungry. There was almost no food coming into the city and the warehouses that contained stored supplies were being constantly bombed by German forces. To get food people had to work, but working was very hard due to the hunger everyone experienced. During the coldest and most critical winter months food rations were 125 grams of bread (about two slices) per person. To get the share a person needed to stay in line for six hours. The stealing of food was one of most punishable crimes. Offenders would be executed the same day as they were reported stealing.”……

    As a comparison, the crimes of the last 9 years from the bush crime family and the ones that just keep coming up (like the oil leak) should be regarded as, “one of most punishable crimes. Offenders would be executed the same day as they were reported stealing.”……Period.

  • Talis

    That is the truth Denny.
    Cons dont even understand the importance of the ACLU.

  • dennycrane

    Below is a site where the tories that tried to overthrow FDR are the friends of really “family value” groups.

    http://barefootandprogressive.blogspot.com/2010…

  • undrgrndgirl

    and what happened to mr. bauer? he was “deported”

  • undrgrndgirl

    no, he's just making good on his campaign promises (if you'd bothered to read his web site you'd know he's just doing what he said he would)

  • Well Well Wel

    More sickness from the US government, when is America going to get a handle on its government? You are hurting other countries with your fascist shit, when are you going to reign in your government America??

  • Well Well Wel

    Oh stop making excuses for Obama, they are all doing the same thing.

  • Phil A Sheo

    Fucking Fascists !

  • fluminense

    The US is a failed state…

  • wial

    We need a progressive party in America, because it sure ain't the dems.

  • Patrick Henry

    A coordinated attack on aggressive defense attorneys has been ongoing since the early 1990's. Many have quit the practice of law due to never ending audits, and others have been suspended or disbarred upon allegations that would have brought a mere slap on the wrist in other areas of specialty. Most defense lawyers simply presume their client is guilty and cut the best plea bargain they can, but a few approach every case as if the client is not guilty, and build defenses from the ground up, taking nearly every case to trial, and seldom obtaining worse results than any plea offer made before trial. Most often their clients are either found not guilty, or guilty of far less serious crimes. However, those lawyers find themselves quickly and quietly the subject of intense IRS and ethical scrutiny, most often upon the most frivolous of grounds. But if you fire enough rounds at a man, you will eventually hit him, whether he deserves it or not. State bar review panels eventually look at the volume of complaints, all found to be without merit, and conclude that something must be wrong. If that trick does not work, then having the IRS camped out daily in one's office will usually do the trick. Certainly, seizing an attorney's trust account, while freezing his other accounts, preventing him from hiring tax counsel, will put him out of business.

    In the 1980's, one felt a subtle shift from prosecutors and defense attorneys viewing one another as fellow professionals, to prosecutors viewing defense attorneys who refused to plea bargain as impediments to their career objectives, and, therefore, political enemies. By the 1990's, this shift had turned into allegations of professional misconduct, often made during the course of a high profile trial, so the defense attorney would receive the ethical complaint during the trial. Moreover, a large number of federal stings and entrapment cases occurred in the late 1980's, involving the FBI using agents posing as defendants in drug trafficking cases hiring attorneys with no prior experience in such cases, then running up exorbitant bills, often requiring solo practitioners to take out second mortgages to finance the case. In the end, the case would be successfully resolved, only to have the defendant claim he could only pay in drugs, getting the defense lawyer on tape to agree to consider the proposal. Conspiracy charges followed, along with minimum mandatory sentences of 15 years confinement for fathers and husbands who had never before, or even actually, broken the law. Their only crimes was being a good defense lawyer who went out on a limb for a glib FBI agent posing as a defendant in a fictional federal case.

    So, this is nothing new, but part of an ongoing attack on that part of the defense bar that actually provides a defense to its clients.

  • dennycrane

    I hope they stop civil the war in Jamaica. The US, years ago needed to let Jamaica become a manufacturing ally with union jobs.

  • http://ankhorite.tumblr.com Ankhorite

    The ACLU is on shaky ground claiming that the nameless photos don't “identify” covert operatives. But on the other hand… how can they defend their clients without knowing who their interrogators were, and cross-examining the interrogators under oath?

  • hurly burly

    He is one correct lefty. So who the hell are you, some right wing Bush lover?

    How can you defend Obama for defending Bush and Cheney?
    The real Markus Garvey would feed you your own ass, and you deserve it.

  • hurly burly

    The USA is on shaky ground as a nation of torture lovers, with almost half supporting torture under W Bush, and almost half turning a blind eye to torture under Obama. The 10% of us who are beyond the disgusting two party trap oppose it.

    You partisans allow it all to continue. The ACLU is rock solid and not on shaky ground.

  • ProudLiberal1947

    I agree and I aplogize, it is That I get so wound up that I hit the wrong button and send instead of proof read sorry.

  • markusgarvey

    whatever HB…you live in your own private Idaho…I'm not defending anyone…nice to know that the real Marcus Garvey appointed you his spokesperson…you just hate me, and I'm ok with that…hate away! xoxoxox…

  • hurly burly

    Can't hate you cupcake, don't even know you.

    Just know that Garvey was anti war, anti establishment, anti bullshit.
    Your 24/7 support of all Obama right wing madness and criminality was the basis for my comment. It was wrong under Bush, it is still wrong under the new guy. Try to get beyond your partisan zealotry and stand up for human rights and the ACLU. Reject the two party tyranny it both of its D and R forms.

  • markusgarvey

    “Your 24/7 support of all Obama right wing madness and criminality “…i have no clue where you get that…that's not me at all…I'm critical of poser trolls like our buddy above…the only thing I'm partisan about is truth and truth has no political party…like me…the only parties i like have nothing to do with politics… ;)

  • http://ankhorite.tumblr.com Ankhorite

    Hey, I support the ACLU. But speaking as an attorney, I think they're going to have a hard time with their assertion that photographs do not “identify” covert operatives.

    We'll see how it shakes out. I hope the judge is fair enough to give the ACLU *some* way of identifying and bringing these people into court.

  • http://ankhorite.tumblr.com Ankhorite

    Thanks for all the info and history, but Patrick Henry, pleeeease consider more paragraph breaks! :)

  • swkidder

    This has promise. If we're going to turn Patrick Fitzgerald loose to identify anyone who has “outed” a CIA officer .. could we encourage him please to look first within the Office of the Vice President during the last administration … and then, but only if he has the time, within the legal profession. Valerie Plame has waited far too long for Justice.

  • Clark Clydestone

    those that put him in office support big oil. a petition will make us feel good, but will accomplish little else.
    Unless we understand the adverary, we will continue as now, it is not by mistake or overight, or lack of will we arrived at America's present. Careful orchestration over many decades that includes some extraoridinary dissimulation and posturing in corridors of government and media.

  • kanawah

    In part is honoring the long standing practice of not going after previous Presidents for what they did while in office. Also, in part, he would be attacked for anything and everything he does while in office, regardless of the validity of the attack. As you can see from their actions the RepubliCANTS are viscous.

    At the moment, their only objective is to steal back power, at what ever cost, even if it brings down our nation.

    The RepubliCANTS are only concerned about holding power and those who finance their taking of it, legally or not.

  • Anonymous

    Tater Salad wow. Just wow. What a bunch of BS.
    You cons that love Beck and Hannity need to be studied. We could learn so much about the inferior brain that gravitates to irrational talking points.

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