As Prof. Steve Vladeck summarizes, Sec. 1037 of the FY2011 NDAA:

[T]itled “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.

Page 403 of the NDAA is where Sec. 1037 begins, see here.  Covered lawyers under Sec. 1037 include uniformed judge advocates and civilian counsel that represented Gitmo detainees.  The bill seems to be a resposne to the Fitzgerald investigation and facts leading up to it, see Newsweek here.  But, I agree with Prof. Vladeck that it is incredibly broad and could be read to sweep in almost every lawyer that ever practiced before the Commissions.

Here are some responses to Sec. 1037 of the FY2011 NDAA, ABA letter here and Prof. Vladeck at Balkinization here.

12 Responses to “Gitmo Defense Lawyer Provision in FY2011 NDAA”

  1. anonymous says:

    I don’t know any more about this other than what’s in Mike’s post, but is there an argument that the GTMO defense lawyers somehow more immune freom being investigated than any other government lawyers? Is this a bad thing?

  2. Gene Fidell says:

    NIMJ has endorsed the ABA’s letter.

  3. Anonymous says:

    Maybe Congress wants to get back to the original paradigm where lawyers could only meet with the detainees to get them to plead guilty.

  4. anonymous says:

    Without question “outing” CIA officers is a felony. If that happened, whomever did that should be prosecuted, and imprisoned. Does anyone disagree with that — if it happened?

  5. Dwight Sullivan says:

    Anon 1029, I have very little knowledge of the law in this area or even the particular facts that have been alleged, but the law appears to be more nuanced than your statement reflects. See 50 U.S.C. 421.

    Section 421 is expressly limited to “covert agents,” which is consistent with Anon 1029’s use of the term “outing.” Do we know whether the individuals purportedly identified were in a covert status?

    [Disclosure: I was the chief defense counsel for the military commission system from 2005-2007.]

  6. anonymous says:

    50 USC 421(c) does not make an exception for defense attorneys.

  7. Dwight Sullivan says:

    I didn’t suggest that it did. But it has a number of limitations. First, it applies only where the defendant has “reason to believe that such activities would impair or impede the foreign intelligence activities of the United States.” Second, it applies only to the disclosure of “information that identifies an individual as a covert agent.” What if the individual to whom the revelation is made already knows the individual is a covert agent? Third, disclosure violates 421(c) only if the individual making the disclosure knows “that the information [identifies an individual as a covert agent] and that the United Staets is taking affirmative measures to conceal such individual’s classified intelligence relationship to the United States.” So unless the individual making the disclosure knows that the agent remains in a covert status, it appears that 421(c) isn’t violated. So it isn’t the case that simply “‘outing’ CIA officers is a felony.” In many scenarios, a defense attorney could show a picture of a CIA agent to a client without violating 421(c) — not because the individual is a defense attorney, but because one or more requirement of 421(c) isn’t satisfied.

  8. Keith Hodges says:

    Potentially very disturbing. If there is reason to suspect a criminal violation by anyone, then one might not complain about cops doing a criminal investigation. But this is an IG investigation focused on practices and conduct of GTMO lawyers. When I see “IG,” I think of inquiries on how to systemically improve something. The issue here should not be how defense counsel conducted themselves and the practices they used (Ethics? Tacticsally permissible? Make a bar compliant if you think so), but whether there are any criminal violations. Wanna bet the final report will say little about whether any covert identities were compromised but a heck of a lot on tactics someone doesn’t like?

  9. JimmyMac says:

    Most federal agency IG offices also conduct criminal investigations and employ criminal investigators (GS series 1811) who carry badges and guns, have arrest authority, and have been through the basic course at the Federal Law Enforcement Training Center. Even NASA IG has a criminal investigations section which, by the way, is headed-up by a retired Marine Judge Advocate. (Note the capitalization of Marine….)

  10. Anon says:

    Might 18 USC 793 have application here? Don’t each of these attorneys have security clearances? And I’d assume that the CIA position is that the identities of these individuals are classified…

  11. anonymous says:

    We will see in due course what the investigation turns up. Perhaps it will be nothing; perhaps but it will be uncovered that the GTMO defense attorneys conspired to learn and disclose the identities of CIA officers to members of al queda. If the latter turns out to be true the obvious result would be a criminal prosecution.

  12. Anonymous says:

    A lot of folks thought old Scooter et al. shouldn’t have been prosecuted for it, and it probably included a V.P. who did it.

    And one of the defenses used was that in fact the CIA agent wasn’t “covert.”