Wednesday, March 10, 2010

'My Dear Abigail, There's a Suicide Bomber in Need of My Counsel'

Maybe you’ve seen the Al Qaeda Seven ad.

The reaction from lawyers (a group hypersensitive to their own privileges) has even drawn in some conservatives.

They’re saying that Liz Cheney, Andrew McCarthy, Bill Kristol, and the Keep America Safe organization have engaged in “a shameful series of attacks” on lawyers for having represented Gitmo detainees and terrorists. Huffs the Brookings Instiution letter: “The American tradition of zealous representation of unpopular clients is at least as old as John Adams’s representation of the British soldiers charged in the Boston massacre.” Even Ken Starr signed this turkey.

But the American tradition is not under attack. Nor is what John Adams did when he represented the Redcoats after the Boston Massacre quite the same thing as trying to keep bin Ladin’s jihadi driver from facing military justice. To start with, the soldiers Adams defended weren’t enemy combatants, as Massachusetts was still a British colony. And Adams’s clients were charged with murder, not violations of the laws of war. And he didn’t go looking for this case; he was asked to take it, and felt duty-bound as a lawyer to accept it.

Had Adams wanted to defend unlawful enemy combatants during wartime, he could have gone down in history defending Major John Andre, whom Washington hanged as a spy.

The jibes about “zealous representation of unpopular clients” are a red herring. The Keep America Safe critics aren’t condemning the Gitmo lawyers for representing unpopular clients. It’s not what they did then, but what they’re doing now. The ad is aimed directly at Eric Holder for selecting out these particular lawyers from America’s teeming pool of attorneys for appointment to national security positions where their demonstrated views on the detention and treatment of terrorists are certain to exert an influence.

Principal Deputy Solicitor General Neal Katyal “represented Salim Hamdan, Osama bin Laden's driver, in the landmark case that led to the overturning the Bush Administration's military commissions.”

Then there’s Jennifer Daskal. “As senior counsel for Human Rights Watch, [she] worked on detainee issues.” Now, reports Byron York, she’s at “Justice's National Security Division” very busy at (ta da!) “working on detainee issues.”

Unlike, say, John Adams, Katyal, Daskal, and the other weren’t just accepting terror cases as a selfless offering to our legal system. They did it because they are committed ideologues.

Andrew McCarthy succinctly puts it that, “the salient issue is that they were volunteers.”

As an editorial at NRO Online says, “Holder has chosen to staff his Justice Department with lawyers who not only voluntarily represented the detainees but tirelessly advocated for them.”

Byron York explains it this way:
Private lawyers can choose to take or not take cases. Sometimes they make their decisions based on money, sometimes on principle, sometimes because they are sympathetic to the accused. The lawyers who worked with the terrorist detainees chose to represent people who are making war on the United States. That's certainly their right, but it's entirely reasonable to ask whether they should now be working on detainee issues at the Justice Department.
But Holder’s defenders say it’s not reasonable to ask. In fact, inquiring about these lawyers’ beliefs, according to Ken Gude of the Center for American Progress, “is exactly what Joe McCarthy did with his Communist witch hunts.” (Some progress if he still has to reach for old Joe McCarthy).

Ann Woolner, one of Liz Cheney’s detractors, thinks Cheney would have accused John Adams of being “a Terrorists’ Pal” because he defended the Redcoats:

If he had done the modern-day version of that and then taken a job at the Justice Department, Liz Cheney would complain. She would say that shows the president and attorney general aren’t serious about defeating the enemy.
I disagree. There are much easier ways to show the president and attorney general aren’t serious about defeating the enemy. Besides, and more to the point, Jennifer Daskal and Neal Katyal haven’t just “taken jobs at the Justice Department.” This isn’t like saying some palooka can’t work for the DPW because he once bought a subscription to The Daily Worker. These lawyers have translated their anti-anti-terrorism skills into powerful positions in the very government department that’s supposed to enforce all the laws they’ve crowned their careers trying to vitiate.

The comparison with Joe McCarthy is meant to recall that dark myth of the Hollywood blacklist. You all remember, (or don’t you watch PBS?), how ridiculous it was, even un-American, when Hollywood actors, writers, and directors were prevented from working just because of their prior dabbling in Communism. I mean, just because Paul Robeson was a committed Red, (and Robeson was a very committed Red), was no reason why he shouldn’t be allowed to keep on singing “Old Man River.”

Except this current business with the Gitmo 9 isn’t comparable. With the Gitmo 9, it’s more like saying that, even if Paul Robeson was a committed Red, that’s no reason he shouldn’t have been allowed to manage the prosecution of the Rosenbergs.

“Hey now!,” I hear you shouting, “Are you saying that just because these lawyers represented terrorists, that they’re terrorists themselves?”

To which I reply: I don’t care if they’re terrorists themselves, I only care that they want the terrorists to win. They may not want them to blow up LAX, but they do want them to win habeas corpus rights, civil trials where their chances of acquittal are increased, stress-free interrogations, Miranda warnings, and transfer to the United States, a sector marked on their jihad field maps as Primary Target. And, I may add, when they were representing these guys, these lawyers didn’t just want their clients to win—they also wanted the United States to lose.

Now it’s one thing to want the government to lose when you’re a criminal defense attorney. We recognize punishing the innocent as a greater evil than letting the guilty go free--and that police and prosecutors are wrong a lot--so our legal system is designed to err on the side of defendants. We tell criminal suspects they have the right to not say anything so they’ll have a fighting chance against a government police power with vastly more resources than they have. We’ve learned that justice is better served by putting the government at a disadvantage: that way they have to work harder for every conviction. That’s our civil legal system.

This is war. It’s a whole other kettle of fish to want the government to lose in wartime. We don’t handicap our soldiers and place obstructions in the path of the Commander in Chief so the enemy won’t suffer a disadvantage. (At least, we never used to). In war, justice is not better served by giving your enemy a fighting chance. We don't tolerate defeat for the sake of our most bloodthirsty attackers being guaranteed a trial by jury. Doing that in war is madness, when it isn’t treason.

It’s good etiquette right now to say that the patriotism of these lawyers shouldn’t be in question. But I say, the hell it shouldn’t! Of course their patriotism’s in question!

And I think even Eric Holder agrees with me. He’s so certain the resumes of the al Qaeda 7 aren’t going to recommend them as patriots that he’s gone to no end of trouble to cover up who they are, and what they’ve been up to, for as long as he possibly can.

I would have no objection if these lawyers had “taken jobs at the Justice Department” doing something else--fighting fraud, catching drug dealers, coercing the Detroit Police Department out of its third-world culture--just so long as their jobs don’t involve terrorism or detainee issues.

I truly don’t want these attorneys criminally prosecuted, disbarred, or mocked by Jon Stewart on The Daily Show because of who they've represented in the past. Stated another way, I don’t believe they should be treated as bad as John Yoo and Jay Bybee have been treated for zealously representing their client, the United States of America. I wouldn’t even object if they staged their own production of Showboat.

I just don’t want them anywhere near my country’s national security decisions.

No comments: