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."