Defending Gitmo’s Lawyers

Jacob Laksin is a senior writer for Front Page Magazine. He is co-author, with David Horowitz, of The New Leviathan (Crown Forum, 2012), and One-Party Classroom (Crown Forum, 2009). Email him at jlaksin@gmail.com and follow him on Twitter at @jlaksin.


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 9/11 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.

  • William Smart

    McCarthyism swings into play in the US – it's almost impossible for many defendants to get effective legal representation as it is.

    • Stephen D.

      The fact is Mr. Smart that McCarthy actually did expose several Communists during his time. As uncomfortable and unpopular it may be to undergo such scrutiny we should ask…what do they have to hide if everything to date has been for the claimed altrustic reasons of "doing what they're supposed to do"? So much for transparency….

    • http://intensedebate.com/people/Rifleman Rifleman

      What does McCarthy have to do with effective legal representation, and what defendants are you talking about?

    • http://intensedebate.com/people/eerieSteve eerieSteve

      What? You mean you and me cannot "OJ" the jury?

    • http://Hollywoodremoteleash.com A Bit Profound

      Mr. Smart ASS DUMMY; There is something Very wrong with you ,those lawyers and everybody else who accept the evil moronic stupidity of Marxist Humanism. It has caused you all to lose any kind of logic or common sence and made you take up residence in "Oppisite Land." Michael savage is right "liberalism is a MENTAL DISORDER."

  • USMCSniper

    Since the so-called detainees advocate the overthrow of the United States by means of force and terrorism. a crime, the the lawyers are aiding and abetting or maybe even an accessory can helping in the commission of a crime, though legal distinctions vary by state. Any person charged with aiding and abetting or accessory is usually not present when the crime itself is committed, but he or she has knowledge of the crime before or after the fact, and may assist in its commission through advice, actions, or financial support. Depending on the degree of involvement, the offender's participation in the crime may rise to the level of conspiracy. Charges need to be brought.

    • John

      Really? So if a lawyer represents a murderer in a trial, he is aiding and abetting murder?

      • http://intensedebate.com/people/eerieSteve eerieSteve

        Legal representation can blur into criminal misconduct, and that is why the "esquires" need to be more careful and less reckless. In Lynne Stewart's case, you had direct kill orders sent from the Blind Sheik and his lawyer Stewart forwarded them to a terror organization.

        Forget charges. One can make the case that the National Bar orchestrates under RICO. I would start immediately seizing assets of every slime bag defense attorney under the sun and use them to fuel the war effort.

      • http://intensedebate.com/people/Rifleman Rifleman

        He's not talking about murderers, he's talking about terrorists, which are illegal enemy combatants engaging in sabotage and war crimes. They don't get criminal trials, they get military tribunals. So a civilian lawyer representing a terrorist, who has no right to our civilian courts in the first place, is a traitor. Did that clear it up for you?

  • aspacia

    Legally, Laksin is correct. We could have interrorgated or shot these animals.

  • Dave

    I think this country is in bad need of some good old fashioned McCarthyism. A Commie by any other name is still a Commie. So lets shine the light on them. Starting with the the Chosen One.

    • http://intensedebate.com/people/eerieSteve eerieSteve

      Wars start when you want them to but do not end when you wish. All the right has to do this election is get out the base.

      Let the Obama Creature hang itself. Hope in 2008 and now its Courage in 2010? What's going to be the theme when the Chicago gangsters cede power? Peace?

      Puh-leeze. After what the DNC did to a sitting President, not less than a decade after women and children were jumping from the WTC, the Leftist wing of the Democratic party should be taken out. Its archaic, it has rotted, and now it is up to us to bury it. Gain power, then systematically decimate.

      There are many ways to clean out the union dens. After this election, if the Republicans win, they should seriously look into forming their own labor unions in the West and the South. Good unions which operate outside the political spectrum and who reward production.

  • Guest

    If these seven lawyers don't have anything to hide, then why are they hiding? They should step up and be proud, if they have nothing to be ashamed of.

    "The good guys don't hide." -Quote the the movie 'The Jackal'

  • velville

    While viscerally I understand the ruckus being made by Ms Cheney and Mr Laksin and a slew of others about the now-DOJ lawyers who previously represented Gitmo prisoners, I am troubled by the tone of the ruckus. As lawyers we often opine that were we to represent only clients with whom we agreed we would have lots of time on our hands.
    I have little respect for the AG and his coterie in general, and this reduces the respect further. However…
    If the lawyers behaved like Lynne Stewart (may she enjoy her tour in the prison), the criticism would be sound. If they did indeed used incitement as a part of their representation, the criticism would be sound. However…
    The fault rests with the Congress.
    The audacity of the Speaker, the Majority Leader, the Minority Leader, and the rest (for whom I have less respect than I do for the AG) is evident when they fail to investigate these folks and raise hell about it.
    The audacity of Sen Reid, Sen Leahy, and their colleagues is evident when they smarm and ooze and try to convince us that they only behave consistently with the Constitution.
    I say a pox on both their houses. If these folks (the lawyers) have behaved illegally, prosecute them. Otherwise, read the Constitution and understand that we are supposed to be zealous.

    • http://intensedebate.com/people/eerieSteve eerieSteve

      I remember from October 2001 until Iraq, the media shaped the issue to deny military tribunals. Remember the uniform debate and whether John Walker Lindh, may his little shit soul burn in hell, should get Geneva Convention status?

  • Max Friedman

    Re David Cole: He was a William Kunstler protege' at the Center for Constitutional Rights (CCR). CCR was formed as a broad-front group of marxist and leftist lawyers that would operate in conjunction with, &d often independent of, the old Communist Party legal front, the National Lawyers Guild as versus the other old CPUSA legal front, the National Emergency Civil Liberties Committee (NECLC

    Kunstler was a closet CPUSA red. All his affiliations & friends were CPers, incl. one of his law partners, Morton Stavis, marxist Arthur Kinoy (NLG, Rosenberg trial/appeal, NCIPA, etc), & Peter Weiss (German-born marxist husband of IPS/Mobes Cora Weiss, daughter of id. CPer member /poss. Soviet agent of influence, Samuel Rubin.

    Cole is one of those legal "anti-anti-communists" who always ends up defending our enemies, be they reds or jihadists.

    This Gitmo bunch is slightly different, having an ACLU parallel mindset to that of the NLG/CCR marxists.They are the new ambulance chasers of the Left, & work against the government, not to defend the Constitution.

  • Democracy First

    Not sure how you see Congress bears any fault here. But does that address this point of yours?: "As lawyers we often opine that were we to represent only clients with whom we agreed we would have lots of time on our hands. "

    If not then perhaps you're not dealing with the arguments aginst these lawyers: they, pro bono, chose to defend enemies, not citizens, not criminals, who legally had no entitlement to defense. And in so doing tnhese lawyers seemed to be acting as advocates. Not necessarily of these terrorists or their cause, but of forcing government to change its very policy towards captured enemy combatants – to treat them as people commiting criminal acts on American soil, rather than acts of war at home or abroad. This is the left wing position, of course. One at least in part, and maybe principally, meant to undermine the policies, protocols and strategies the Bush admin developed to prosecute the war on Islamists. As such, they have no place in government positions.

    Or worse, maybe, given their free service to these Islamists, some of these lawyers really do have Islamist sympathies, or share the anti-American sensibilities and perspective of the far left anti-American crowd. While this may seem a far stretch for some, consider some of Obama's appointments: truth Van Jones and Mao fan Anita Dunn. Why shouldn't we suspect the motivations, then, of these appointments?

  • http://www.keep2theright.com KEEP2THERIGHT

    Get your "Don't Close Gitmo!", "We'll Remember Come November", and "I'd Rather Be Waterboarding!" stickers at http://www.keep2theright.com

  • http://intensedebate.com/people/eerieSteve eerieSteve

    Unbelievable.