When news of the Vieira investigation first broke, Anthony Romero, the ACLU's executive director, insisted no laws or regulations had been broken. "The real scandal," he said in a statement, "isn't that we're investigating the torture of our clients, but that the government isn't." By mid-March 2010, it had become clear that Vieira wasn't convinced any of the Guantanamo lawyers had broken the law. Elements within the CIA weren't happy. On March 15, the Washington Times' Bill Gertz—a journalist with good sources in the CIA and the Bush administration—published an extensive article outlining the agency's gripes with Vieira.
Under serious pressure from inside and outside the government, Attorney General Eric Holder appointed Patrick Fitzgerald, the US attorney who handled the Plame matter and the Rod Blagojevich case, to take over the investigation into the Gitmo lawyers. Holder was sending a message, to the Gitmo bar and the Right: He took the matter very seriously.
The investigation is highly secretive, and Fitzgerald runs a famously leak-free ship. A Justice Department spokesman would only say that "Patrick Fitzgerald, the US Attorney for the Northern District of Illinois, has been assigned responsibility for this matter," a statement that suggests the investigation may be ongoing. Randy Samborn, Fitzgerald's spokesman, said Fitzgerald's office had no comment on whether an investigation is still underway.
There are some signs of activity. In the year since Fitzgerald took over, people and organizations connected to the case began to change their behavior. Sifton sharply reduced his role in the private investigation firm he founded, One World Research, to take an investigative job with a white-shoe law firm. For some time during 2010, Mother Jones has learned, Sifton was being represented by a top Washington lawyer with deep connections in the Justice Department.
Today, friends and associates say, the once-fiercely defiant Sifton is oddly quiet, and no longer speaks about the identities of the people whom he once believed to be involved in the interrogation program. The ACLU and the John Adams project have also clammed up. After first aggressively defending their actions in the press, the groups moved to a strict no-comment strategy after Fitzgerald took over the investigation. But privately, Romero has continued to complain that Guantanamo defense lawyers associated with the ACLU were under enormous legal pressure from the DOJ.
Given the circumstances, "Any sort of reasonable person would pause and think about what might happen to them in the zealous protection of their client," says Andrea Prasow, a senior counsel at Human Rights Watch. If defense lawyers at Guantanamo believed that they needed photos of CIA interrogators in order to meet their ethical obligations to mount a vigorous defense of their clients, "It's hard to think they'd be confident given what happened to their colleagues," Prasow said.
Stephen Saltzburg, a law professor at George Washington University who testified before Congress about the military commissions last week, says he's "sure" that the military lawyers currently assigned to the 9/11 defendents would argue that they were not intimidated by the DOJ investigation. But if he were a defendant, Saltzburg says, he would "want to know whether my lawyer had been under investigation, because I wouldn't be so sure how it was going to effect how the lawyer was handling my case."
The DOJ probe isn't even the only option on the table for investigating the Gitmo defense bar. Last year, Republicans in Congress pushed hard for a provision that would have essentially instituted a permanent Defense Department investigation of the activities of all Guantanamo defense lawyers.
The measure failed, but it proved an important point: Even a Fitzgerald-led, CIA-instigated, months-long DOJ investigation of Guantanamo defense lawyers isn't aggressive enough for some folks. In 2007, Charles Stimson, then the top Pentagon official in charge of Guantanamo detainees, resigned after he attacked top law firms for allowing their lawyers to represent terrorism suspects. "Corporate CEOs seeing [their law firms representing detainees] should ask firms to choose between lucrative retainers and representing terrorists," Stimson said. The fact is, there are some who believe it's not just the 9/11 defendants who are the enemy—their lawyers are, too.