NYC Bar Opposes New Provision In National Defense Act

Monday, July 5, 2010 - 01:00

The New York City Bar Association recently released a letter opposing a provision in the National Defense Authorization Act for Fiscal Year 2011 that would require the Inspector General of the Department of Defense to investigate lawyers representing Guantanamo detainees in habeas corpus proceedings or military commissions.

The letter, to Senate Armed Services Chair Carl Levin and Ranking Member John McCain, states that proposed Section 1037 would require such investigations "if there is a 'reasonable suspicion' that they 'interfered with operations at Guantanamo' relating to detainees; 'violated any applicable policy of the Department of Defense,' 'violated any law within the exclusive jurisdiction of the Inspector General,' or 'generated any material risk to a member of the United States Armed Forces.'"

The letter calls these criteria "vague and ill-defined," because "[v]irtually all actions by lawyers seeking to effectively advocate for detainees can be said to 'interfere' with operations at Guantanamo in that they might compel the Department of Defense to take some action other than operating the facility as it chooses. In addition, lawyers cannot possibly be expected to know every Department of Defense policy that may possibly be violated as many of these rules are kept undisclosed." The letter states that "the federal government already has adequate powers to investigate unlawful or improper conduct" in these situations.

Calling the provision "unnecessary and harmful," the letter says it would "undermine a detainee's right to effective assistance to counsel, a right that is guaranteed by the Military Commissions Act and a right that is necessary to give effect to the Supreme Court's decision in Boumediene v. Bush, which upheld a detainee's right to petition for a writ of habeas corpus."

The letter states that the provision "not only serves no useful purpose, but seriously threatens to undermine the constitutional right to assistance of counsel, lawyers' ethical obligations, the rule of law and our nation's long and proud tradition of encouraging lawyers to represent those who cannot afford representation, no matter how unpopular those persons are," and that it "would threaten to disrupt the adversary system of justice on which our legal system is founded."