Posted: March 12th, 2010 by Militant Libertarian
Attack on Guantanamo attorneys insults proud U.S. legal tradition.
One of America’s proudest traditions is that everyone, no matter how reviled, has a right to be represented in court and that there are always courageous lawyers willing to do the job. It’s one of the things — like the legal system itself — that separates the United States from its enemies, deterring persecution of the innocent and shoddy police work alike.
When British soldiers shot into a taunting Boston crowd in 1770, killing five, John Adams, later the nation’s second president, represented the soldiers at their trials. When an American Nazi group sought to march in a heavily Jewish suburb of Chicago in 1977, an ACLU lawyer represented the group to uphold the guarantee of freedom of speech. In recent years, more than 500 lawyers have kept that tradition alive by defending terrorism suspects held at Guantanamo Bay, Cuba.
Apparently having no use for this tradition of protecting individual liberty, a conservative group called Keep America Safe put out an Internet ad that smears a group of those lawyers who now work at the Justice Department. The ad dubs them the “al-Qaeda 7,” portrays the Justice Department as the “Department of Jihad?” and asks darkly, “Whose values do they share?”
Well, Keep America Safe got an unexpected answer this week. Not only liberals but also a who’s who of conservative lawyers, including many top Bush administration officials, decried the ad as “shameful.” Bush solicitor general Ted Olson, whose wife was killed on 9/11 in the jetliner that slammed into the Pentagon, told Newsweek the lawyers’ work was in “the finest traditions” of the profession.
If Olson believes it’s honorable for lawyers to defend detainees, then maybe Keep America Safe’s leaders — conservative activist Bill Kristol and Liz Cheney, daughter of the former vice president — ought to take a look at their tactics, their values and the facts.
The fact is that many of those whom Liz Cheney is quick to brand as terrorists have been released from Guantanamo — including about 530 by the Bush administration, which admitted many posed no long-term threat.
In her attack, Cheney pointed specifically to Osama bin Laden’s driver, Salim Hamdan, who was represented by Neal Katyal, now a top Justice official. In 2006, the U.S. Supreme Court agreed with Katyal’s argument and ruled 5-3 that military commissions then being used did not offer detainees sufficient protections. Does Cheney want to question the patriotism of those five justices?
Cheney suggests that the work these lawyers did disqualifies them from making detainee policy at Justice. It doesn’t. Representing a detainee disqualifies a lawyer from taking part in any government case involving that person, and Justice lawyers have recused themselves from many cases. By Cheney’s standard, no one who had ever been a criminal defense lawyer could work at Justice, probably disqualifying several attorneys general and the current head of the FBI.
Cheney’s campaign looks like payback for calls from the left to prosecute two former Bush Justice Department lawyers who signed off on legal memos justifying waterboarding of al-Qaeda suspects. That demand, too, was inappropriate.
Late last year, Attorney General Eric Holder might have defused the situation by releasing the names of the Guantanamo lawyers when several Republican senators asked for them. Instead, he stonewalled, making it appear there was something to hide.
None of this, however, justifies Keep America Safe’s exercise in character assassination. Far from keeping America safe, such tactics disgrace the nation’s history and violate its values.