Speaking before a liberal audience at the Alliance For Justice's annual luncheon, State Department Legal Adviser Harold Koh defended attorneys in the Justice Department who had previously done work on behalf of detainees at Guantanamo Bay.
"Every day, I work with dozens of brave and selfless attorneys from my office, dedicated career lawyers and political appointees, including many of the Justice Department attorneys, who in the best traditions of our legal profession chose to advocate pro-bono for Guantanamo Detainees," Koh said. "They are heroes. They are among the finest lawyers I have ever known."
Republicans in Congress however, feel differently. At Balkinization, Steve Vladeck reports on an amendment to the Defense Authorization bill that would explicitly target these attorneys for investigation:
As set forth in the bill, the lawyers subject to such an investigation are military or civilian lawyers for whom there is “reasonable suspicion” to believe that they have:
(A) interfered with the operations of the Department of Defense at Naval Station, Guantanamo Bay, Cuba, relating to [non-citizens detained at Guantánamo];
(B) violated any applicable policy of the Department;
(C) violated any law within the exclusive investigative jurisdiction of the Inspector General of the Department of Defense; or
(D) generated any material risk to a member of the Armed Forces of the United States
Under the provision, the IG is required both to report on such conduct and to "identify any actions taken by the Department to address any [such] conduct or practice.”
So it wouldn't just be targeting civilian lawyers -- it would also be targeting those military defense attorneys, who out of their loyalty to their country, provided their clients with a zealous defense. The irony of course, is that under this rubric, you might as well begin investigating the Justices sitting on the Supreme Court of the United States, who agreed with these attorneys on the appropriate jurisdiction of federal courts over Guantanamo detainees. Satyam Khanna and Spencer Ackerman have more.
If the amendment makes it through markup in the Senate, it would represent an extraordinary coup for the torture wing of the GOP, in particular Liz Cheney and Bill Kristol, whose group Keep America Safe first brought this smear to a national audience. It would also be a remarkable reversal of fortune for those attorneys who authorized torture -- while they face no legal consequences, the lawyers who fought to keep the conduct of the war on terrorism within constitutional bounds would be treated like criminal suspects. Indeed, whose understanding of those constitutional limits was ultimately vindicated by the Supreme Court.
At any rate, while the Obama administration may be "looking forward" on torture, the GOP certainly isn't. Having failed to hold any of the legal architects of torture accountable, the administration has undermined the notion that they did anything wrong in the first place, allowing Republicans to focus entirely on smearing those attorneys who advocated on behalf of the rule of law as traitors.
Dawn Johnsen, the Bush critic whose nomination to head the Office of Legal Counsel was derailed by torture apologists angry over her criticism of torture memo author John Yoo and arguably the torture wing of the GOP's first scalp, was also present at the AJC luncheon this afternoon. Koh said to Johnsen, "whether in and out of the government, your voice will be heard, and your example will be followed. I thank you for all you have gone through to serve your country." The "thanks" attorneys who represented detainees could be facing is investigation and possible prosecution.
-- A. Serwer
