Mike Scarcella and David Ingram have a post Friday’s BLT:The Blog of Legal Times about the efforts of certain right wing group to force out Department of Justice attorneys who prior to being hired by the Department of Justice represented detainees at Guantanamo.

Liz Cheney’s group called Keep America Safe has gone on You Tube with a video asking the Justice Department to identify their attorneys who previously represented detainees. Cheney and her colleagues are usin McCarthy guilt by association methods to connect Justice Department lawyers with the their clients who were charged with terrorist activities. In fact many of the lawyers who have represented detainees are prominent Republicans active in party politics and who were appointees in the Bush and Reagan administrations.

But that’s what lawyers are supposed to do. Defendants have a Six Amendment right to representation regardless of their politics and regardless of the charged crime. They not only have a right to representation but they have a right to zealous representation. Bush Solicitor General Ted Olson stated that those who represent Guantanamo detainees represent the best in the American values.

What would Cheney have said about John Adams who represented British soldiers accused of killing demonstrators in the Boston Massacre or Atticus Finch who represented an African American accused of raping a white woman in Alabama during the 1930’s in Harper Lee’s novel, “To Kill a Mockingbird.”

United States District Court Judge Ellen Huvelle granted Mohammed Jawad’s writ of habeas corpus. She ordered the government to release him from Guantanamo and return him to Afghanistan. But she gave the government until August 21 to return him to Afghanistan.

Jawad is the youngest detainee at Guantanamo. It is believed that he was only 12 years old when he was arrested by Afghan police and turned over to the US military.

Under Federal law the president must give Congress 14 days notice before releasing someone from Guantanamo. The judge gave the government until August 6 to give Congress notice.

The government will probably use the next three weeks to develop a case against Jawad and attempt to charge him in Federal Court. But to convict him in Federal Court they have to show that he is guilty beyond a reasonable doubt, a much stricter standard than was necessary in the habeas proceedings and if they were unable to meet the habeas standard it is doubtful that they can meet the beyond reasonable doubt standard. The problem with the government’s evidence against Jawad, who they believe threw a grenade into a vehicle carrying two US soldiers and an Afghan interpreter, is that it was obtained by torturing Jawad and it is therefore inadmissible in Federal courts.

Jawad’s former military prosecutor, Lt. Col. Darrel Vandeveld, has stated that there is ‘no credible evidence or legal basis’ to justify Jawad’s detention and prosecution, and that his release presents no risk.”

As the judge said, “Enough has been imposed on this young man,”

A Federal judge set a new standard, according to an article in Jurist for habeas relief for prisoners accused of terrorism replacing the Bush administration’s enemy combatant standard. The new standard, supported by the Obama government is meant to comply with international laws of war and the government’s Authorization for Use of Military Force, which was passed by Congress in the immediate aftermath of the 9/11 attacks. The new standard allows for the detention of those “who were part of, or substantially supported, the Taliban or al-Qaeda forces”

At this point the order just affects writs that are being heard by Judge Reggie Walton of the District Court for the District of Columbia but it is expected that other judges will adopt the same or a similar standard.

Attorneys Clive Stafford Smith and Ahmad Ghappour face six months in prison for writing to President Obama according to an article in SF Gate,

They represent Mohamed Binyam Mohamed who was renditioned and tortured while under the control of the CIA. Eventually he ended up at Guantanamo. He was released after he sued Jeppson Dataplan, a subsidiary of Boeing, that was involved in his extraordinary rendition. (He turned down an earlier release which came with the condition that he not talk about his imprisonment.

Smith and Ghappour have represented many prisoners housed at Guantanamo including Mohamed. They drafted a letter to Obama attempting to discover the extent of Mohamed’s torture while Mohamed was at Guantanamo. The law requires attorneys who represent clients at Guantanamo to obtain the approval of the Privilege Review Team. The Privilege Review Team is a secret body whose job is to approve communications between Guantanamo prisoners and their lawyers. Smith and Ghappour submitted their letter to the Privilege Review Team. They did not expect to have any problems since Obama, of course, has a complete security clearance. But when they got the letter back the complete body of the letter was redacted.

They sent the redacted letter, along with a cover letter to Obama. The next thing they know there is a warrant out for their arrest for violating the rules of the Privilege Review Team. They could receive six months in jail.

It seems to me at a minimum the charges against Smith And Ghappour violate Mohamed’s Sixth Amendment right to competent counsel and the rights of Smith and Ghappour under to First Amendment to freedom of speech and freedom to petition.

The case reminds me of that of Lynne Stewart, the New York lawyer who represented Omar Abdel Rahman, a blind Egyptian sheik who was convicted of conspiracy to blow up the United Nations, an FBI building, two tunnels, and a bridge in New York City. She was convicted and sentenced to twenty-eight months for helping her incarcerated client convey a message to his followers. Like Smith and Ghappour her speech should be protected by the First and Sixth Amendments. It is currently up on appeal.

Both prosecutions are attempts to quiet lawyers who are raising serious issues which the government finds bothersome. The attack upon the right of counsel is an attack upon the Constitution for without the right of counsel to vigorously carry on the battle of their clients the constitutional rights are meaningless.