Yesterday, the Senate approved the Defense Authorization bill funding the ongoing wars in Iraq in Afghanistan. While there's still debate before the bill heads to the president's desk, the bill currently authorizes * another war--against the civilian and military lawyers who represented Guantanamo Bay detainees accused of terrorism. If passed in its current form, the bill would subject these attorneys to investigation based on whether or not they "interfered with the operations of the Department of Defense at Naval Station, Guantanamo Bay, Cuba." The amendment treats defense attorneys as being implicated by their decision to provide a zealous defense for their clients, even when they were ordered to do so. The presumption of guilt thrust onto Gitmo detainees has now been extended to their lawyers.
Glenn Greenwald's post today highlights how absurd this is. Since 2008, the government has lost nearly three-quarters of habeas challenges, meaning that courts decided, in the vast majority of cases, that the government had no plausible reason to hold these individuals. The notion that lawyers who defended Gitmo detainees are by definition sympathetic to terrorism is absurd on its face, because most of the people they represented were determined not to be the enemy. In case after case, the Supreme Court agreed with those lawyers who advocated for due process rights for detainees, meaning that these attorneys are being targeted for upholding the law. This amendment authorizes the government to retaliate against lawyers because the government was unable to prove their case in court. Can you imagine what our legal system would look like if lawyers could be punished merely for acting lawfully on behalf of their clients? It would destroy the entire process.
This amendment is a mark of the fight on terrorism's perverse distortion of the American legal system -- we now treat those who make our legal system legitimate, who ensure that only those who are guilty are punished, as potential traitors. It's uncanny how un-American this is -- public officials take an oath to protect the Constitution rather than the American people because lives can be lost but the loss of democracy and due process is irreparable.
The legal architects of the Bush administration's torture regime escaped accountability for authorizing criminal behavior their allies minimized as a "policy difference." Now, under a Democratic administration, those same allies are targeting attorneys who did their duty by upholding what Thomas Jefferson called the "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." This amendment belongs in the America of paranoid comic-book fantasy, not in the real world.
*Correction: the Senate didn't pass the House version, and its the latter that has the provision targeting Gitmo lawyers.
-- A. Serwer
