Defending Gitmo's Lawyers

The Left tries to squelch debate about the “Al-Qaeda Seven.”

Joe McCarthy lives, and his name is Liz Cheney. Such has been the overreaction of the Left, and much of the establishment media, to the now-famous “al-Qaeda seven” internet ad aired by Keep America Safe, the political group which the former vice president’s daughter co-chairs.

Despite being denounced as a McCarthyite smear job, the ad’s content was relatively tame. It called on Attorney General Eric Holder to reveal the identities of seven of the nine Justice Department lawyers who represented or advocated for the Guantanamo Bay detainees while in private practice. (Holder already has named two of them.)

Just as notable – yet not nearly as noted – is what the ad did not say. At no point did it call for the DOJ attorneys to be fired for supplying legal counsel to terrorist detainees. In that respect, it was very different from the Left’s campaign to criminally prosecute attorneys in the Bush administration’s Justice Department who wrote memos justifying the use of harsh interrogation on Guantanamo detainees like Khalid Sheikh Mohammed. The National Lawyer’s Guild, the premier left-wing legal group, has even called for one of those attorneys, John Yoo, to be disbarred, fired from his job as a professor at Berkeley law school, and tried as a war criminal. Nothing in the Keep America Safe ad even approaches that level of politically motivated sabotage.

That distinction has not deterred the ad’s left-wing critics from waxing indignant about the injustice supposedly done to the seven anonymous DOJ attorneys. For the Left, the DOJ lawyers who represented Guantanamo detainees follow in the proud American tradition of providing counsel to unpopular clients. Liberal columnist Eugene Robinson recently scolded that the lawyers targeted in the ad

“…did what lawyers are supposed to do in this country: Ensure that even the most unpopular defendants have adequate legal representation and that the government obeys the law.”

But that analogy is specious. Guantanamo’s al-Qaeda detainees aren’t unpopular criminals. They are enemy combatants and, as such, have no constitutional right to legal counsel – a legal tradition recognized by the Supreme Court since World War II. As Andrew McCarthy points out:

“The al-Qaeda detainees at issue are not accused defendants. They are plaintiffs filing offensive lawsuits (habeas corpus claims) against the American people during wartime. Unpopular American inmates must represent themselves in such suits because there is no right to counsel.”

With the legal precedent decidedly not in their favor, the ad’s foes on the Left have resorted to shrill cries of “McCarthyism.” Nation contributor and long-time anti-Guantanamo activist David Cole recently raged that Liz Cheney “challenged the loyalty and patriotism” of the lawyers who had represented the Guantanamo detainees. Whether or not one agrees with that description, it’s peculiar that Cole should take issue with this approach. After all, left-wing activists have long claimed that Bush attorneys like John Yoo should be tried for “treason” for supposedly singing off on “torture” – a passion for questioning patriotism that Cole, the author The Torture Memos: Rationalizing the Unthinkable, has done much to fuel.

Even granting Cole’s premise that the ad questioned the patriotism of the DOJ lawyers, the logical response is: So what? Why should it be off-limits to question the motives of lawyers who volunteered their services to America’s terrorist enemies? Especially when those services could have jeopardized the war on terror – and endangered American soldiers – by securing the release of terrorist combatants?

In fairness, even some on the Right have objected to the ad’s implication that the DOJ lawyers harbored pro-terrorist sympathies. (“Whose values do they share?” the narration portentously asks.) That may have overstated the case, but the fact remains that while the Guantanamo lawyers are not themselves jihadists they have aided the jihadists’ cause. Some went further than others: As Debra Burlingame and Thomas Joscelyn detail in the Wall Street Journal today, lawyers for the detainees occasionally defined zealous representation to mean inciting the detainees; distributing anti-American propaganda; encouraging the detainees to claim they were abused and tortured; and even endangering Guantanamo’s guards by handing out a map of the detention camp’s layout, including the guard towers.

No one has suggested that the seven unnamed DOJ lawyers were involved in those cases or used those tactics. But then that was Keep America Safe’s point in its ad: to establish which of the Guantanamo lawyers is serving in the Justice Department and to determine what influence, if any, they may have over national security policy generally and Guantanamo Bay in particular.

That disclosure may be in the administration’s interest, and not only because Obama was elected on a promise of unparalleled transparency. Although the administration has largely maintained the Bush administration’s detention policies – from rendition and indefinite detention to military tribunals – it blundered badly when it proposed a civilian trial in New York for 911 mastermind Khalid Sheikh Mohammed. A bipartisan backlash seems to have convinced the administration to abandon that plan. It’s impossible to know if that move came on the advice of any of the Guantanamo lawyers. But if so, the scrutiny brought on by the ad the Left loves to hate may be the perfect opportunity to reshuffle the DOJ ranks in the interest of better legal counsel.