The Return of the ‘al-Qaeda Seven’ Witch Hunt?

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Wednesday, May 26, 2010 at 10:26 am

Something else to keep an eye on in the Senate Armed Services Committee’s defense authorization mark-up: via Satyam Khanna, Steve Vladeck finds the remnant of a much-denounced smear on attorneys who have defended Guantanamo Bay detainees in the bill.

[S]ection 1037 of the Act [page 403 of the PDF], titled “Inspector General Investigation of the Conduct and Practices of Lawyers Representing Individuals Detained at Naval Station, Guantanamo Bay, Cuba,” instructs the Department of Defense IG to “conduct an investigation of the conduct and practices of lawyers” who represent clients at Guantánamo and report back to the House and Senate Armed Services Committees within 90 days.

“Reasonable” basis for an investigation of these lawyers includes such vagueries as believing an attorney “interfered with the operations of the Department of Defense at Naval Station, Guantanamo Bay, Cuba.” As Vladeck points out, this can mean any attorney, since the overlapping DOD commands at Guantanamo Bay (the Office of Military Commissions; the Naval Base; Joint Task Force-Guantanamo; the Office of the Secretary of Defense) ensure that any lawyer will inevitably “interfere” with some operation on the base. Consider the chilling effect that will have on detainees’ access to counsel in the commissions.

For instance. Right this moment, the chief commissioning authority for the military commissions at Guantanamo, Vice Adm. Bruce MacDonald, is in talks with detainee Omar Khadr’s attorneys to see if the Khadr’s case can be resolved through a plea deal. The government’s interest in seeking a plea? First, a judge might throw out a lot of the basis for its case against Khadr as improperly coerced; and more broadly, a detainee who was 15 years old when first captured by U.S. forces might not make the best poster boy for the justice dispensed by the military commissions.

So how cooperative might Khadr attorneys Barry Coburn and Kobie Flowers be in those plea talks if a different military command is investigating their activities at Guantanamo Bay? More broadly, how might an appeals court consider the overall fairness of a system that allows for detainees’ access to counsel — but places the specter of military investigation over counsel’s heads?

We’ll see whether this survives the Senate committee mark-up or the floor vote in the House.

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Comment posted May 26, 2010 @ 9:35 pm

Does mounting a vigorous defense of a client, who may be completely innocent, constitute, “interfer[ing] with the operations of the Department of Defense at Naval Station, Guantanamo Bay, Cuba”? Or does it require the more serious charge denying the government a conviction?


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