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Did Gitmo Defense Lawyer Break Any Laws?

That’s what I asked Joshua Dratel, Chair of the John Adams Project Advisory Committee and a prominent defense lawyer who has represented numerous terror suspects before. Speaking this morning after the news broke that the Department of Justice is investigating military defense lawyers representing terror suspects, Dratel said he couldn’t talk about the specifics of the investigation. But he explained that even if defense lawyers had shown photos of people who might have interrogated their clients, that wouldn’t be breaking the law as long as they didn’t get those photos from the government, or know they were classified or deemed “protected” information by the government or a court.

“There are no court rules or rules in the military commissions that would prohibit showing detainees photos “as long as you obtained them from an unclassified source, and they weren’t otherwise covered by a protective order,” said Dratel.

In general, lawyers cannot show their clients information that is classified. And like anyone else, they can’t intentionally reveal the identity of a covert CIA agent knowing that the agent is or recently was playing a covert role with the CIA. It’s not clear if any lawyers showed their clients photos of interrogators who were acting covertly, but it’s also unclear how an official questioning a terror suspect on behalf of the CIA would be covert.

In any event, defense lawyers are troubled that the Justice Department decided to leak news of the investigation to reporters. The Washington Post and The New York Times both reported the story this morning.

“It’s unfortunate that someone in a position to know better decided to go public with this and attempt to smear people in a way that they can’t do legally,” Dratel said. “The investigation is something that’s extraordariny not only for the fact that it’s occurring, but for how it’s occurring, with people being confronted by law enforcement,” said Dratel.

Government agents reportedly approached three lawyers from the Judge Advocates General’s Corps two weeks ago and informed the military lawyers of their right to remain silent, then asked whether they’d shown their clients photos of CIA officials.

“Normally, when a prosecutor wants to subpoena a lawyer, they have to get permission and jump through a lot of hoops,” said Dratel. “I see this as heavy-handed.”

It also could be a way to intimidate the lawyers from aggressively defending their clients. Yesterday, American Civil Liberties Union president Anthony Romero vigorously defended the defense lawyers, who are receiving assistance from the ACLU through the John Adams Project, which has organized private attorneys to assist the military lawyers in defending terror suspects.

“Identifying who tortured our clients and what they did to them and when is an essential part of defending their interests in these sham proceedings,” Romero told The Times.

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