Lawyering Up

Chait:


Lawyer Up

Liz Cheney: Guilty ’til proven innocent.

Jonathan Chait

March 17, 2010 1:48 pm

Earlier this month,the conservative organization Keep America Safe launched a p.r. fusillade against Department of Justice (DOJ) attorneys who represented Guantánamo detainees. “The crux of the matter,” says Liz Cheney, chair of the organization, “is the American people have a right to know whether lawyers who used to represent and advocate on behalf of terrorists” are working at DOJ. They just want to know who the terrorist lawyers are. An innocent question, to be sure.

Bill Kristol, a board member for Keep America Safe, chimes in that another question is “whether former pro bono lawyers for terrorists should be working on detainee policy for the Justice Department.” Perhaps the terrorist lawyers should have more harmless roles--say, advocating for low-income tenants over at HUD.

The important claim here is not the stated argument that terrorist lawyers should be publicly revealed, or that they shouldn’t be working for the DOJ. It’s the assumption that they are representing terrorists. The assumption permeates conservative rhetoric on issues of torture and detainee rights. Consider some brief passages from a recent column by former Bush speechwriter Marc Thiessen:

...Unless they have been charged before military commissions or civilian courts, the al-Qaeda terrorists held at Guantánamo 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. ... Yet thanks to the habeas campaign, al-Qaeda terrorists who violate the laws of war now enjoy all these privileges. ... [The DOJ lawyers] have reached outside the judicial system and dragged the terrorists in. ... The same is true if they choose to devote their time to freeing America’s terrorist enemies from lawful confinement under the laws of war [emphasis added]...

Thiessen makes explicit the position that the rhetoric about “terrorist lawyers” is meant to imply--namely, that terrorists should not have lawyers at all. The conclusion flows naturally when you begin by defining the defendants as “terrorists.” The truth, though, is that a good number of these “terrorists” are not terrorists at all. One CIA intelligence analyst well-versed in Islamic extremism who interviewed detainees at Guantánamo determined that one-third had no connection to terrorism at all. A subsequent study by Seton Hall University Law School found that over half of the detainees were not determined to have committed any hostile act against the United States, and only 8 percent were characterized as Al Qaeda fighters.

The vast majority of the detainees were turned in not by U.S. forces but by Pakistani or Afghan locals, many of whom received financial bounties. And some of the detainees were hardly caught red-handed on the battlefield. The process for screening detainees was “horrible,” a former Pentagon official told McClatchy newspapers. “‘Captured with weapon near the Pakistan border?’ Are you kidding me?” This, of course, is why lawyers were needed in the first place.
The strongest conservative argument against providing legal counsel to military detainees relies upon precedent. “In the 234 years since [John] Adams and his compatriots fought for our independence,” writes Thiessen, “the United States has held millions of enemy combatants--and not one had ever filed a successful habeas corpus petition until the habeas campaign on behalf of Guantánamo detainees began.”

Maybe the U.S. government has never previously granted such due process to captured enemy combatants. This is because, as Republicans point out ad nauseam in other contexts, this war is unlike previous wars. The enemy wears no uniform, obeys no international conventions of warfare, and so on. We didn’t need to provide habeas corpus rights during World War II because, when we captured a man in a German army uniform, we could be pretty confident that he was actually a German soldier, not some hapless goatherd sold into our custody by a jealous village rival.

The reality that numerous detainees were not a threat to the United States is one of those inconvenient facts that the conservative movement has sealed out of its information loop. You could spend days reading right-wing commentary without coming across any suggestion that the clients of these lawyers were anything but “terrorists.” In fact, this attitude simply carried over from the Bush administration itself. In her book, The Dark Side, Jane Mayer recounts how Bush administration officials came across disturbing evidence that the Guantánamo prison held perhaps 200 innocent people. But, when they brought the information to the West Wing, David Addington, Dick Cheney’s legal counsel, said, “No, there will be no review. The President has determined that they are ALL enemy combatants. We are not going to revisit it!”

From this premise, it’s not such a leap to conclude that the lawyers representing the detainees must actually sympathize with terrorists. The charge that the Department of Justice employs actual Al Qaeda sympathizers has received a wide hearing in respectable forums. Wall Street Journal editorial writer Dorothy Rabinowitz repeatedly insinuated as much (“Can you really say that this was done without political sympathy?”) during a recent televised discussion. National Review’s Andy McCarthy avers that “many of the attorneys who volunteered their services to al Qaeda were, in fact, pro-Qaeda or, at the very least, pro-Islamist.”

The proprietors of these charges see themselves as victims of a double standard. “You can say or do anything when it comes to the Bush lawyers who defended America against the terrorists,” complains Thiessen, “but if you publish an Internet ad or ask legitimate questions about Obama administration lawyers who defended America’s terrorist enemies, you are engaged in a McCarthyite witch hunt.”

Imagine! The liberals will call you a McCarthyite merely because you’re accusing an opposing presidential administration of harboring conscious supporters of a totalitarian movement aimed at destroying America, and you conflate support for basic civil rights with opposition to the defense of democracy, and among your chief spokesmen is an unhinged paranoid named “McCarthy.” Have these liberal accusers no decency? At long last, have they no decency?..

me (in agreement):

I think this is a very good article.

It lays bare the hole in the conservative position on the issue--that calling detainees enemy combatants by administrative fiat begs the question of their status. Rights minded lawyers righteously pitched in to provide legal assistance to those whose status was so circularly determined. When I saw the Cheney add I took it as unsubtly saying that to represent a "terrorist" is to have your client's paint on you from the terrorist brush. The conservative lawyers and others who protested the add were exactly correct to attack that smear. It's despicable.

And Andrew McCarthy arguing for the righteousness of the smear more subtly perpetuated it by attaching these lawyers and the left (where he locates Obama) to jihad as follows:

...Jihadists believe it is proper to massacre innocent people in order to compel the installation of sharia as a pathway to Islamicizing society. No one for a moment believes, or has suggested, that al-Qaeda’s American lawyers share that view. But jihadist terrorists, and Islamist ideology in general, also hold that the United States is the root of all evil in the world, that it is the beating heart of capitalist exploitation of society’s have-nots, and that it needs fundamental, transformative change...

...This, as I argue in a book to be published this spring, is why Islam and the Left collaborate so seamlessly. They don’t agree on all the ends and means. In fact, Islamists don’t agree among themselves about means. But before they can impose their utopias, Islamists and the Left have a common enemy they need to take down: the American constitutional tradition of a society based on individual liberty, in which government is our servant, not our master. It is perfectly obvious that many progressive lawyers are drawn to the jihadist cause because of common views about the need to condemn American policies and radically alter the United States....

The assimilation of those on the left , and, even more attenuated, lawyers offering detainees legal services, to some of the beliefs of Jihadists is as specious as it is scurrilous, as is the assertion of some common cause between them both. The left by and large does not think America is the root of all evil; nor does it seek to overturn American ideals and creedal beliefs.

There is a different issue when it comes to wanting to know where a Justice policy making lawyer stands philosophically with respect to the policy he or she is helping to make. It may be that positions such lawyers took in litigation and in particular circumstances may cast some light on their point of view. And from that perspective, the bright line between a disinterested lawyer and his or her client may not be so clear. So I think that public information about who department lawyers are and the circumstances of their litigational or other legal efforts will, being public, perforce be available, and may be relevant.

But relevant to what?

Not being an American I don't know whether there is non executive oversight as to who the Attorney General staffs himself with. I can't imagine there is. Assuming there isn't, the only relevance I can see of such public information is to the political argument next election time round over the legal regime the administration has brought in as a piece of its whole administrative cloth.