The latest controversy of the day among many on the right, led principally by Liz Cheney and William Kristol, involves attacking Justice Department lawyers who represented alleged members of al Qaeda or the Taliban detained at Guantanmo Bay.
[L]awyers now at the DOJ worked on the historic Boumediene case. That case established the Gitmo detainees’ right to challenge their detention in habeas corpus hearings. In effect, the habeas proceedings have taken sensitive national security and detention questions out of the hands of experienced military and intelligence personnel, and put them into the hands of federal judges with no counterterrorism training or expertise. That lack of experience shows. For example, in one recent decision a federal judge compared al Qaeda’s secure safe houses (where training, plotting and other nefarious activities occur) to “youth hostels.” The habeas decisions are filled with errors of omission, fact, and logic.
Still other lawyers did work on behalf of these well known terrorists: Jose Padilla (an al Qaeda operative dispatched by senior al Qaeda terrorists to launch attacks inside America in 2002), John Walker Lindh (the American Taliban), and Saleh al Marri (who 9/11 mastermind Khalid Sheikh Mohammed sent to America on September 10, 2001 in anticipation of committing future attacks).
Now, we don’t know what assignments these lawyers have taken on inside government. But we do know that they openly opposed the American government for years, on behalf of al Qaeda terrorists, and their objections frequently went beyond rational, principled criticisms of detainee policy.
Not everyone on the right agrees with Kristol and Cheney on this, of course. Two former Bush Administration DOJ officials, John Bellinger III and Peter D. Keisler, have come to the defense of what Cheney, Kristol, and their acolytes are calling “The Al Qaeda Seven”. and one very conservative blogger who has no love for the Obama Administration puts it this way:
The lawyers who represent criminals do not represent them because they support crime, they represent them because they support our system of justice. So too those who represented alleged members of al-Qaeda do not support their beliefs but our beliefs in the right to a fair trial and the right to a lawyer. Our system of justice depends on lawyers vigorously advocating for the rights of criminals to receive a fair trial. I couldn’t do it–I’m more of a “try ‘em and fry ‘em” kind of lawyer–but somebody has to do it. And to seek to disqualify lawyers for simply doing their jobs because we don’t like who they represented is plain stupid. Oppose the Obama Administration and Attorney General Holder when they are wrong, not merely for the sake of opposing them.
As Walter Dellinger points out in today’s Washington Post, this attack on the legal profession is nothing short of shameful:
It never occurred to me on the day that Defense Department lawyer Rebecca Snyder and Lt. Cmdr. William Kuebler of the Navy appeared in my law firm’s offices to ask for our assistance in carrying out their duties as military defense lawyers that the young lawyer who worked with me on that matter would be publicly attacked for having done so. And yet this week that lawyer and eight other Justice Department attorneys have been attacked in a video released by a group called Keep America Safe (whose board members include William Kristol and Elizabeth Cheney) for having provided legal assistance to detainees before joining the department. The video questions their loyalty to the United States, asking: “DOJ: Department of Jihad?” and “Who are these government officials? . . . Whose values do they share?”
That those in question would have their patriotism, loyalty and values attacked by reputable public figures such as Elizabeth Cheney and journalists such as Kristol is as depressing a public episode as I have witnessed in many years. What has become of our civic life in America? The only word that can do justice to the personal attacks on these fine lawyers — and on the integrity of our legal system — is shameful. Shameful.
Moreover, as one blogger points out, these lawyers were doing what every lawyer does:
[L]awyers represent clients. That’s what they do. It’s a mistake to assume that because Lawyer A represents Client B, he approves of whatever it is that Client B was accused of. He may genuinely believe that Client B is innocent. Even if he doesn’t, he almost certainly believes that Client B is entitled to a fair trial to establish his guilt or innocence. And he absolutely believes that he wants to collect his paycheck, in return for which he must do what he does, which is represent clients (by either personal hiring or government appointment to the job).
Just ask a guy named John Adams:
“I. . .devoted myself to endless labour and Anxiety if not to infamy and death, and that for nothing, except, what indeed was and ought to be all in all, sense of duty. In the Evening I expressed to Mrs. Adams all my Apprehensions:That excellent Lady, who has always encouraged me, burst into a flood of Tears, but said she was very sensible of all the Danger to her and to our Children as well as to me, but she thought I had done as I ought, she was very willing to share in all that was to come and place her trust in Providence.
“Before or after the Tryal, Preston sent me ten Guineas and at the Tryal of the Soldiers afterwards Eight Guineas more, which were. . .all the pecuniary Reward I ever had for fourteen or fifteen days labour, in the most exhausting and fatiguing Causes I ever tried: for hazarding a Popularity very general and very hardly earned: and for incurring a Clamour and popular Suspicions and prejudices, which are not yet worn out and never will be forgotten as long as History of this Period is read…It was immediately bruited abroad that I had engaged for Preston and the Soldiers, and occasioned a great clamour….
“The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the Jury was exactly right.
Yes, that’s right. One of America’s greatest Founders, a member of the Continental Congress, and Second President of the United States defended the British soldiers accused of killing five people in the Boston Massacre. He did it because he believed that everyone deserved a defense.
It’s a fact of life that lawyers who practice criminal law, and sometimes even us civil attorneys, will eventually represent disreputable clients. Some do it because they are doing their job, some do it because they believe everyone deserves a defense, and they deserve our thanks, not our condemnation.