Noted pundits Bill Kristol and Liz Cheney have dubbed a number of US Justice Department lawyers the "Al Qaeda 7" for representing or advocating on behalf of the rights of Guantanamo detainees. Kristol and Cheney seemingly claim that anyone representing people the executive labels as terrorists is supporting terrorism themselves. Of course, just because your dad says someone is a terrorist doesn't make them a terrorist; that's why we have courts, due process, and lawyers in this country. The "Al Qaeda 7" campaign has justifiably received harsh criticism on these grounds from critics on the political Left and Right (including one person who lost his job for attempting a similarly scurrilous attack on Guantanamo lawyers in 2007).
These critics would surely be surprised to find out that the very question of whether the government can criminally prosecute an attorney for representing a client said by the executive to be a member of al Qaeda is unresolved under current law. It is by no means clear under current caselaw that an attorney can form an attorney-client relationship - even pro bono - in such circumstances without exposing themselves to criminal liability under a variety of sanctions regimes prohibiting support for terrorism.
A variant on this question was just before the Supreme Court in Holder v. Humanitarian Law Project, a case challenging one of these regimes, the "material support" statute. Under that criminal statute (18 U.S.C. § 2339B), created in 1996, the government can create lists of foreign terrorist organizations. There are few restrictions on the scope of the designation power--a group that uses violence only against property and harms only the economic interests of the United States can be included--and little opportunity to get off the list. Once a group is on the list (which for all federal sanctions schemes is currently 450 pages long), almost any form of association with the group or its members becomes a serious felony--providing material support to a terrorist organization--punishable by 15 years in prison. While a layperson might assume that "material support" was limited to providing arms or money to such a group, it is defined much more broadly in the statute. And through three administrations, the government has consistently claimed that things like writing an op-ed or an amicus brief on behalf of a blacklisted organization constitutes providing your own personal "services" (or yourself as "personnel," or your "expert advice or assistance" or any number of amorphous terms in the statute) to the group.
When Holder v. Humanitarian Law Project was argued to the Court on February 23, the government argued (as it has for years) that submitting amicus briefs "for" a blacklisted organization is a criminal act. The Court, understandably, was intrigued, and for seven pages of the transcript the Court explored the issue, eventually asking when a lawyer could even represent a group (or, by extension, its members) in an American court:
Justice Breyer: "I just want to know if [this] is what you're saying ... an organization that [is] engaged in terrible stuff, that they are not entitled under the Constitution to have a lawyer in the Untied States who does legal work like filing amicus briefs."
Obama's Solicitor General Elena Kagan: "To the extent that there is any constitutional claim that they would be entitled to representation, whether it's a Sixth Amendment claim or a due process claim that might exist in criminal cases, that might exist in habeas cases, that might exist in civil cases, then the government believes that the statute should be read so as not to include that [in the scope of what is criminally prohibited]."
(Here's a link to the transcript, at page/line 49:15 to 50:2.) The hypothetical continued past the notion of actually writing the brief, and into whether a lawyer could explain how to submit such a brief:
Justice Kennedy: "Can you [say] ... here's how to file an amicus brief?"
Kagan: "....you can't. Because when you tell people [that], you've given them an extremely valuable skill that they can use for all kinds of purposes."
(That's at pages 51:18 to 52:6 of the transcript.)
These answers actually hew quite closely to the most comfort the caselaw can give attorneys on this score: an opinion, written by Justice Ginsburg when she was a judge on the D.C. Circuit, called American Airways Charters, Inc. v. Regan, 746 F.2d 872 (D.C. Cir. 1984). That opinion concerned whether a lawyer could represent an entity that was targeted under the Cuban economic embargo regulations, which bar most transactions (whether they involve money or not) between Cuban nationals and Americans. The court said that the government could ban payments to the lawyer (and in fact the Cuban government's lawyers in the U.S. need annual licenses to get paid for their work). But on the question of whether the lawyer could form an attorney-client relationship with his blacklisted client - that is, whether he could represent them at all, even pro bono - the court only offered this small comfort: where the Due Process clause of the Constitution guaranteed some rights enforceable in court to the client, then the lawyer could provide his legal "services" for free without fear of criminal prosecution.
That is small comfort to attorneys in the public interest community. After all, we spent six years representing Guantanamo detainees in the course of convincing the government that they had some constitutional right to habeas corpus. (According to the government, that was only established with the Supreme Court's Boumediene v. Bush decision in 2008.)
We know now, after many years of litigation and the release of some 590 detainees, that most of the men held at Guantanamo were not in fact members of Al Qaeda or the Taliban. It turns out Liz Cheney's dad understood that from the start. But if Cheney père's public statements at the time had been correct in claiming that there were many members of banned groups there, then we lawyers would have been risking more than just our careers and reputations when we stepped into this work in 2002.
Kagan's position has been picked up on by the lunatic fringe. Note how former Bush speechwriter and current extremist-in-residence at the Washington Post, Marc Thiessen, put the case against the "Al Qaeda 7" in a posting last month on the WaPo blog (yes, the blog - they have standards for the columns they actually print): "Unless they have been charged before military commissions or civilian courts, the al-Qaeda terrorists held at Guantanamo do not have a right to counsel under the Sixth Amendment. They are not accused criminals. They are enemy combatants held in a war authorized by Congress." Few of his readers will have understood that this position has implications for public interest lawyers as well as for the men they seek to represent.
Now, even the Bush administration Justice Department declined to focus in on this question of whether we had the right to represent our clients without criminal liability. But for several years the administration claimed that Rasul v. Bush hadn't established any constitutional right to habeas. The administration argued that Rasul only established a statutory right (later swept away by the 2006 Military Commissions Act). Could a statutory habeas right have been tempered by statutory sanctions regimes criminalizing the representation of members of banned "Foreign Terrorist Organizations"? Who knows?
"Who knows?" is surely an answer hated by law firm managing partners trying to determine their firms' exposure to criminal liability for taking on unpopular pro bono representation. Yet in an era where the extraterritorial reach of the federal courts is increasingly a subject of litigation, establishing the bounds of jurisdiction will require the participation of lawyers willing to take on cases near the limits. Add this to the list, then, of reforms to the material support statute and related sanctions schemes that Congress should undertake after the Supreme Court decides the HLP case.
Shayana Kadidal is senior managing attorney of the Guantánamo project at the Center for Constitutional Rights.