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Letter to Senate Armed Services Committee Regarding Guantanamo Bay Attorneys

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The Honorable Carl Levin
Chair
Senate Armed Services Committee United States Senate
269 Russell Office Building
Washington, DC 20510

The Honorable John McCain
Ranking Member
Senate Armed Services Committee
United States Senate
241 Russell Office Building
Washington, DC 20510

September 16, 2010

Dear Senators Levin and McCain:

I am writing to you on behalf of the Washington Council of Lawyers (“WCL”) to express the WCL’s opposition to Section 1037 of H.R. 5136, the House version of the National Defense Authorization Act for Fiscal Year 2011 (“NDAA”), and to urge the Senate to oppose adding language comparable to that contained in Section 1037 to the Senate version of the NDAA or to any conference bill.

WCL is a non-profit organization of lawyers and legal workers committed to the spirit and practice of law in the public interest. Founded in 1971, the Washington Council of Lawyers is the area’s only voluntary bar association dedicated exclusively to promoting pro bono and public interest law. Council members represent every sector of the Washington legal community – lawyers and pro bono coordinators from large and small law firms and law schools, lawyers from public interest groups, government agencies and congressional offices, as well as law students and members of law-related professions. We are united in our conviction that the legal system must be made to serve the needs of the poor and the powerless as well as the more fortunate among us, and share a common concern for the well-being of our community and the integrity of our civil and constitutional rights.

While the American democracy is founded on the ideals of equality and fairness, those ideals are realized only to the extent that the least powerful and least popular individuals have effective means to enforce them. Therefore, we join numerous other esteemed organizations in opposing the language in Section 1037 of H.R. 5136, which directs the Inspector General of the Department of Defense to investigate the conduct and practices of lawyers representing prisoners at Guantanamo Bay when there is “reasonable suspicion” that the lawyers have interfered with the operations at Guantanamo, violated any applicable Department of Defense policy, violated any United States law, or generated any material risk to an Armed Forces member.

As others have eloquently explained, this provision is not necessary to further any legitimate goal of ensuring that lawyers representing prisoners at Guantanamo comply with their ethical and legal obligations as lawyers, as any such aim is already satisfied by the disciplinary authority of the jurisdictions in which the lawyers are admitted to practice and criminal statutes that provide for prosecution where appropriate. Rather, this ambiguous provision would serve only to chill the advocacy of lawyers who have a duty to zealously represent their clients by any legal and ethical means available to them, and who are already striving to do so under extremely challenging circumstances and, in the many cases in which representation is provided pro bono, at great personal sacrifice. Indeed, entirely lawful and ethical advocacy that upholds the highest traditions of the profession could be viewed by some as “interfering” with the operations at Guantanamo. As a result, we believe that including language in the final version of the NDAA that is comparable to the language contained in Section 1037 would seriously undermine the willingness and ability of lawyers to engage in the pro bono representation of detainees and, therefore, would be contrary to the administration of justice.

For these reasons, we urge the Senate not to include in the Senate version or conference bill of the NDAA language comparable to that of Section 1037 of H.R. 5136.

Sincerely,

Taryn Wilgus Null
President
Washington Council of Lawyers