'Intimidation' Factor? Congress Seeks Greater Scrutiny of Guantanamo Detainee Lawyers

Provision in defense bill would allow more investigations of detainee lawyers.

WASHINGTON, May 27, 2010— -- Defense attorney Clive Stafford Smith is no stranger to U.S. government investigations into the work of lawyers representing detainees at Guantanamo Bay, Cuba.

Stafford Smith has been scrutinized four times, he says, for allegations ranging from violating rules on classified information to smuggling contraband, including Under Armour underwear and a Speedo bathing suit, to one of his clients.

He says the allegations -- which he takes very seriously -- have gone nowhere, and he believes they are attempts by the government to intimidate him and other lawyers.

"Doing these Guantanamo cases has been intimidating enough as it is," said Stafford Smith, who received anonymous death threats early on in his work. "On top of that, to have the government making these kind of threats is over the top."

But some lawmakers and administration officials see the closer examination of the work of defense lawyers at Guantanamo Bay as necessary, despite the perception of it being "intimidating."

An ongoing Justice Department investigation, for example, is looking into allegations that military lawyers -- who have no connection to Stafford Smith -- may have given their clients pictures of their CIA interrogators, a prospect that has many lawmakers alarmed.

By a unanimous vote earlier this week, the House Armed Services Committee approved a defense appropriations bill that includes a measure to expand the power of the Defense Department to investigate the "conduct and practices of lawyers" at Guantanamo.

The measure specifically instructs the DOD inspector general to examine the work of attorneys representing clients at Guantanamo Bay who may have "interfered with operations of the Department of Defense" and report back to Congress.

The measure's sponsor, Rep. Jeff Miller, R-Fla., 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.

"If an attorney was involved in trying to identify a covert CIA officer or their families, the attorney should be held accountable," Miller told ABC News. "If they were not [involved], the attorney should not have anything to be concerned about."

The measure is expected to be up for a vote before the full House today.

Lawyer Groups Bristle at Investigations of Detainee Lawyers

But many defense lawyers say the measure is too broad and risks infringing on constitutional freedoms.

The ACLU, which was working with the military lawyers alleged to have provided pictures of CIA officers to detainees, said the statute, if enacted "will prevent civilian and military defense attorneys from doing their jobs."

Stephen Vladeck, an American University law professor who also defended a Guantanamo detainee, called Rep. Miller's proposal "the latest salvo in the war on lawyers."

The proposal to investigate any lawyer who "interferes" with detainee operations could ensnare "virtually every lawyer that has represented a detainee," he wrote on his blog.

"From the government's perspective, the representation itself has caused substantial interference, since lawyers have, among other things, informed detainees of their rights; petitioned the federal courts for the detainees release; obstructed the government's ability to interrogate the detainees and so on," he said.

The American Bar Association also opposes the provision in the defense bill.

"If passed, this legislation will have a severe chilling effect on the ability of lawyers to provide zealous advocacy and effective assistance of counsel to their clients at Guantanamo," said Carol Lamm, president of the ABA.

Still, Rep. Miller believes expanded authority for the DOD to investigate lawyers working at Guantanamo holds them to "the same standard of any other individual."

"Attorney-client privilege doesn't give them the ability to break the law and compromise national security," he said.

After the full House votes on the legislation, it heads to the Senate Armed Services where the debate is expected to continue.

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