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March 08, 2010

Lawyers Fight Back, Attack Keep America Safe For Reminding People DoJ Lawyers Defended Terrorists

This ad did two things…

It forced the DoJ to stop stonewalling and release the names of the lawyers who worked for free on behalf of terrorist detainees.*

It also got the media to focus on the real villains here, Liz Cheney and Bill Kristol.

It’s a given that anytime conservatives charge something damaging about liberals, the media doesn’t actually consider the charge being made but rather focuses on how horrible the conservatives are for daring to make it.

Today brings these two attacks on Cheney and her organization.

The NY Times begins in this predictably sad way…

In the McCarthy era, demagogues on the right smeared loyal Americans as disloyal and charged that the government was being undermined from within.

And blah, blah, blah. When people yeal “McCarthyism”, I tend to nod off.

Second a group of lawyers, including some who worked in the Bush administration, has released a letter which says in part,

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. People come to serve in the Justice Department with a diverse array of prior private clients; that is one of the department’s strengths. The War on Terror raised any number of novel legal questions, which collectively created a significant role in judicial, executive and legislative forums alike for honorable advocacy on behalf of detainees. In several key cases, detainee advocates prevailed before the Supreme Court. To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit.

Such attacks also undermine the Justice system more broadly. In terrorism detentions and trials alike, defense lawyers are playing, and will continue to play, a key role. Whether one believes in trial by military commission or in federal court, detainees will have access to counsel. Guantanamo detainees likewise have access to lawyers for purposes of habeas review, and the reach of that habeas corpus could eventually extend beyond this population. Good defense counsel is thus key to ensuring that military commissions, federal juries, and federal judges have access to the best arguments and most rigorous factual presentations before making crucial decisions that affect both national security and paramount liberty interests. To delegitimize the role detainee counsel play is to demand adjudications and policymaking stripped of a full record. Whatever systems America develops to handle difficult detention questions will rely, at least some of the time, on an aggressive defense bar; those who take up that function do a service to the system.

Here’s the thing, if you only listened to the defenders of the terrorist lawyers you’d get the impression that unless these brave defenders of American values stepped up and volunteered their services, the detainees would have had no legal representation whatsoever. That’s simply false. The military provided counsel to each of the detainees (pdf) and enabled them to challenger their status within the military commission system and federal court.

The defenders also say that these top flight law firms donated valuable services only they could provide. Okay but that’s not the same as saying they would not have been receiving competent and aggressive counsel to begin with. It seems these folks, the lawyers and their defenders, are saying that detainees are not only entitled to basic representation but the best available and nearly unlimited resources as well.

This is a level of service and protection not provided to the overwhelming number of actual Americas on a daily basis. I’m sure there are people caught up in legal problems not of their own making who would love to have the resources of a top flight law firm put at their disposal. Yet they somehow have to make the best of the lawyer they can afford or the ones provided to them by the courts.

There's also a practical matter that should concern everyone. Obama came to office promising to deal with terrorism in general and detainees in particular in a very different way than the Bush administration did. Shouldn't we know if the people designing and implementing these new policies have certain prior positions and affinities? No, you can't always tell a lawyers personal beliefs from teh cases they handle but you can't rule it out entirely either. It seems if nothing else, we should be able to make our evaluations on this.

As for the Boston Massacre analogy, it fails to persuade. Those soldiers were British subjects on British soil. Of course they were owed all the legal and traditional rights of any other Englishman. Al Qaeda terrorists held in Gitmo are none of those things.

I don’t think these lawyers share the ideology of al Qaeda and quite frankly I doubt Cheney and Kritol do either. Calling them the “al Qaeda Seven” was a way to grab attention and was well within the bounds of political discourse. Still the fact remains that these lawyers chose to use their talents and resources in the service of terrorists. They did so not to maintain some minimal standard of representation but to go beyond that basic standard and attempt to expand the traditional rights afforded terrorists and war criminals. Like all choices in life, this one has consequences. When you voluntarily associate with bad actors, some of that is going to rub off on you.

*Allah points out that FNC puzzled out the names and DoJ confirmed them, so my characterization of the ads impact was overstated. There is no doubt that it brought attention to the matter and possibly some public pressure on the department.


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posted by DrewM. at 01:36 PM

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