Dispatches from the Creation Wars

Just when you thought that idiotic and demagogic faux-controversy over Justice Department attorneys who had defended detainees held at Guantanamo Bay was over, Spencer Ackerman reports that a provision in the defense authorization bill being debated in Congress right now would demand an investigation into those attorneys.

[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.


Ackerman points out the dangers of this kind of thing:

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?

That is, of course, the entire point. It’s intended to intimidate attorneys who might represent detainees.