an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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.
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.”
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; and so on. Perhaps Congress means something different from “interfered with,” but such sweeping language is difficult to construe narrowly. To be sure, I don’t mean either to condone or criticize such “interference” in general, but merely to point out that this language would basically require the DoD IG to report to Congress on every lawyer who has represented a Guantánamo detainee at any time in the past eight years, including me.
Second, although I think we can all agree that lawyers who violate the law should be subject to investigation and potential punishment (or, perhaps we can’t even agree on that much), it should be obvious just how far past that scenario this provision sweeps. This statute would raise a different issue altogether if the investigation-triggering conduct were limited to subsection “(C)” quoted above. But in addition to the vague and sweeping language of subsection (A), subsections (B) and (D) also sweep well past the kinds of conduct for which lawyers have traditionally been subject to investigation and congressional oversight.
With these observations in mind, the potential practical effect of this provision is deeply disturbing. One can only imagine the kind of chilling effect it might have on lawyers to know that their efforts to provide the Guantánamo detainees with the meaningful access to the courts required by the Supreme Court in Boumediene will nevertheless subject them to the scrutiny of the House and Senate Armed Services Committees. Moreover, the “reasonable suspicion” standard could itself force counsel to think twice before challenging extant DoD policies governing their interactions with their clients, thereby interfering with counsel’s ability zealously to represent their clients. The mere threat of investigation could easily force compliance with troubling policies limiting lawyer-client interaction that counsel might otherwise seek to challenge. Say what you will about the merits of these cases, but I had thought we’d long-since settled the appropriateness of allowing lawyers in these cases vigorously to represent their clients in court, consistent with the highest traditions of the profession.
The hard question, it seems to me, is whether these provisions would survive constitutional challenge. To be sure, these are not direct constraints on attorney speech, like the spending restrictions invalidated by the Supreme Court in 2001 in Legal Services Corp. v. Velazquez. But what Justice Kennedy wrote there is telling: “The attempted restriction is designed to insulate the Government’s interpretation of the Constitution from judicial challenge. The Constitution does not permit the Government to confine litigants and their attorneys in this manner. We must be vigilant when Congress imposes rules and conditions which in effect insulate its own laws from legitimate judicial challenge.” Even if this provision doesn’t directly constrain the ability of Guantánamo lawyers to advocate on behalf of their clients, the serious chilling effect that it will likely have, especially at the margins, seems to raise the same concerns identified by the Velazquez Court. Moreover, what is at stake is not merely the First Amendment rights of the lawyers, or the habeas corpus rights of the detainees. As Velazquez suggested, it is the separation of powers itself that is implicated when Congress so directly interferes with constitutionally-protected legal representation. This is not to say that such language wouldn’t survive constitutional challenge, but that, at the very least, it is deeply troubling legally, as well as practically.
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. But so long as Congress is seriously considering language like this, it seems that such lawyers will continue to have to defend themselves as much as they (and in order to) defend the rights of their clients.
Steve Vladeck is Professor of Law at American University Washington College of Law. You can reach him by e-mail address at svladeck at wcl.american.edu