JURIST Guest Columnist Bruce J. Einhorn of Pepperdine University School of Law says that provisions of the National Defense Authorization Act for Fiscal Year 2011 that would allow for special investigations of lawyers representing Guantanamo Bay detainees should be removed from the bill…

For 11 years, I had the great privilege of serving my country as a prosecutor and supervisory attorney with the Criminal Division of the U.S. Department of Justice. Specifically, I worked with the Office of Special Investigations (“OSI”), which was charged with the identification and prosecution of fugitive Nazi war criminals living illegally in the United States. My dedicated OSI colleagues and I were aggressive and relentless in bringing to justice former death camp guards, SS members, Gestapo informants, and non-German collaborators in the persecution and execution of prisoners of war and civilians. Yet, as dedicated as we were to bringing these individuals to justice, the defense counsel appointed to represent and ethically bound to zealously defend the accused often caused us frustration with their dilatory tactics and gross misrepresentations. Still, my OSI colleagues and I never made the mistake of taking our eyes – or the courts’ or the public’s – off the defendants who had allegedly committed the horrendous acts of persecution that occasioned our investigations or prosecutions.

Nazi Germany has been flung in defeat into the ash heap of history. Now we are engaged in a struggle with another, relentless evil – terrorism fueled by religious extremism and a homicidal hatred of the West. In the course of that struggle, we have detained alleged terrorists and others at Guantanamo Bay who are being investigated and may be prosecuted for serious violations of U.S. and international law.

In this struggle, however, our government is about to make the very mistake we at OSI avoided – the mistake of diverting its attention from the suspected terrorists and casting it onto the American defense counsel retained to represent them.

Section 1037 of the House version of the National Defense Authorization Act for Fiscal Year 2011 (H.R. 5136) [PDF] would require the Inspector General to conduct a 90-day investigation of any attorneys – including civilian attorneys – who represent Guantanamo detainees for whom there is “reasonable suspicion” (a phrase the bill does not define) that they have engaged in any practice or conduct that has (1) interfered with the operations at Guantanamo, (2) violated any applicable Defense Department policy, (3) violated any law of the United States, or (4) generated any “material risk to any member of the Armed Forces.” This legislative provision attempts to subject the private practice of criminal law to military regulation and restraint. Indeed, the provision attempts to make quasi-prisoners out of the attorneys in the course of their professional duties at Guantanamo.

Not only does the bill impose martial law on the right to counsel, it does so unnecessarily. Federal and state bar rules provide severe penalties, including disbarment, for lawyers who engage in unethical, deceptive, and fraudulent practices or demonstrate grave disrespect and contempt for judicial and court security officers and other government officials. Furthermore, federal and state laws also provide for heavy fines and imprisonment for any attorney who engages in the theft or misuse of classified information or military property or the providing of material support for terrorist activity.

Section 1307 is nothing more than a means of deterring defense attorneys from representing detainees at Guantanamo, meant to chill the defense bar from dissenting from the treatment of the detainees, lest those lawyers themselves become the target of military scrutiny. The bill undermines the promise of the U.S. Supreme Court in the case of Boumediene v. Bush: that Guantanamo detainees and their advocates will have meaningful access to courts of justice to review their confinement.

Our Constitutional system of justice recognizes that defense counsel in criminal cases should never be subject to government diktat on how they should advise their clients or conduct themselves as zealous advocates in opposition to the state’s role as prosecutor. That is why the American Bar Association, the American College of Trial Lawyers, and dozens of former judges and prosecutors, including officials from the Ronald Reagan and George H.W. Bush Administrations, organized by the non-partisan Constitution Project have all publicly opposed Section 1307 of H.R. 5136. They understand, as I do, and as the Supreme Court in the case of Berger v. United States did, that while the prosecuting authorities, whether military or civilian, “may strike hard blows” they are “not at liberty to strike foul ones.” Section 1307 is foul play, and should be removed from the Defense Authorization Act. The Senate should not allow for an equivalent of Section 1307 to be included in its version of the National Defense Authorization Act, which the Senate will consider shortly and it certainly should not be included in the conference bill.

During my time prosecuting Nazi war criminals, the OSI never put the defendants’ attorneys on trial – figuratively or literally. We at OSI and the Justice Department understood that the zealous representation of even individuals accused of the most heinous crimes made our legal system the fairest in the world, and ensured that judgments finally obtained against Nazi criminals would withstand attack both on appeal and in the court of public opinion.

Supporters of Section 1307 would be well-advised to learn this lesson. The accused terrorists should be the targets of their investigations and prosecutions, not the lawyers.

Bruce J. Einhorn is a former federal prosecutor and a retired federal judge who now serves as a Professor of Law at Pepperdine University in Malibu, CA.