While the situation of Gitmo detainees hasn’t been on everyone’s lips lately, as we bore of all things legal in time as funnier and more pressing stories and decisions arise, that doesn’t mean that the government has forgotten.  No, not at all.  Thus, Steve Vladeck’s search of the bowels of a new authorization act at Balkanization discloses that the government still doesn’t love us nearly as much as we deserve.

Buried in the depths of the National Defense Authorization Act for FY2011 (H.R. 5136) is the latest salvo in the war on lawyers. In particular, section 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.

After all, if you’re having problems convicting Guantánamo detainees, the problem must be their lawyers.  What nefarious things do they suspect?  They’re searching for reasonable suspicion that lawyers, military or civilian,

(A) interfered with the operations of the Department of Defense at Naval Station, Guantanamo Bay, Cuba, relating to [non-citizens detained at Guantánamo];

( 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

That pretty much spells out the evils our government feels compelled to stamp out.  As Steve notes,

Before turning to the disturbing practical and legal implications of this provision, let me make two quick observations about its scope: First, virtually every lawyer that has represented a detainee at Guantánamo has “interfered with the operations of the Department of Defense” at Guantánamo. After all, from the government’s perspective, the representation itself has caused substantial interference, since lawyers have, among other things, informed the detainees of their rights; petitioned the federal courts for the detainees’ release; obstructed the government’s ability to interrogate the detainees

If the government takes the position that their goal is to make sure that anyone within their grasp is shown to be an evil terrorist, then there isn’t much a defense lawyer does that won’t, at minimum, interfere.  Interference R Us.  Of course, from our perspective, we would prefer to think of our role as defenders of the Constitution, fulfilling the promise embodied in that document for even the most hated, most powerless in the government’s grasp.  But hey, what are constitutional rights in the face of Department of Defense policy? 

Steve questions whether this will have a chilling effect on lawyers defending Gitmo detainees. My guess is that it won’t, primarily because those lawyers bold enough to face down the government on matter that will one day grace the history books (unless Texas has its way) as being this generation’s Japanese internment camps.  That Congress has chosen to put its threats into law doesn’t change the recognition by defense lawyers that they have huge targets on their backs.  Teacups do not represent accused terrorists.

The problem with this law isn’t so much as how it’s applied, but how many pages of details the Inspector General can write before his hand gets tired.  It’s almost impossible to imagine that the lawyer are violating any laws in the defense, knowing that they would be nailed within seconds given how great the scrutiny on them and how limited their ability to interact with their clients.  Not that they would, but they can’t anyway.

As for the rest of the investigation, it’s absurd, since their very job is to “interfere” with the government’s getting its way without any lawyer impeding it.  As for generating a material risk to a member of the armed forces, that’s just a matter of perspective and rhetoric.  Under a loose interpretation combined with chaos theory, everything they do creates a risk.  Materiality is just a matter of sensitivity, and the government can be awfully sensitive when it comes to challenging its authority.

Steve notes that the inclusion of this provision comes as something of a surprise:

I had hoped (perhaps naively) that the dust-up earlier this year over the “al Qaeda 7” (and the emphatic response thereto) had finally put to bed the repeated attacks on lawyers that have arisen since Cully Stimson’s spurious critique of the role of D.C. law firms in Guantánamo litigation in January 2007.

So the attack on Biglaw for aiding didn’t play well, but that’s a little different, since all the former Justice folks expect to get lucrative partnerships there later, and have a vested interest  in protecting their retirement funds.  That doesn’t mean that the legal glitterati will turn out for the trench lawyers who stand beside the accused, have the government’s big guns pointed at their heads, but no jobs to offer government officials in the future.

Just as our War on Terror continues, so does the war on those who stand between the government and those who may or may not have any role in it. It would be a shame if we forgot about them and the risk they take making sure the Constitution remains intact while defending the most despised.  Just thought you ought to know.  It’s not like they’re getting rich and famous on this gig, you know.

H/T Ed at Blawg Review