Earlier this month,the conservative organization Keep America Safe launched a p.r. fusillade against Department of Justice (DOJ) attorneys who represented Guantánamo detainees. “The crux of the matter,” says Liz Cheney, chair of the organization, “is the American people have a right to know whether lawyers who used to represent and advocate on behalf of terrorists” are working at DOJ. They just want to know who the terrorist lawyers are. An innocent question, to be sure.
Bill Kristol, a board member for Keep America Safe, chimes in that another question is “whether former pro bono lawyers for terrorists should be working on detainee policy for the Justice Department.” Perhaps the terrorist lawyers should have more harmless roles--say, advocating for low-income tenants over at HUD.
The important claim here is not the stated argument that terrorist lawyers should be publicly revealed, or that they shouldn’t be working for the DOJ. It’s the assumption that they are representing terrorists. The assumption permeates conservative rhetoric on issues of torture and detainee rights. Consider some brief passages from a recent column by former Bush speechwriter Marc Thiessen:
Unless they have been charged before military commissions or civilian courts, the al-Qaeda terrorists held at Guantánamo do not have a right to counsel under the Sixth Amendment. They are not accused criminals. They are enemy combatants held in a war authorized by Congress. ... Yet thanks to the habeas campaign, al-Qaeda terrorists who violate the laws of war now enjoy all these privileges. ... [The DOJ lawyers] have reached outside the judicial system and dragged the terrorists in. ... The same is true if they choose to devote their time to freeing America’s terrorist enemies from lawful confinement under the laws of war [emphasis added].
Thiessen makes explicit the position that the rhetoric about “terrorist lawyers” is meant to imply--namely, that terrorists should not have lawyers at all. The conclusion flows naturally when you begin by defining the defendants as “terrorists.” The truth, though, is that a good number of these “terrorists” are not terrorists at all. One CIA intelligence analyst well-versed in Islamic extremism who interviewed detainees at Guantánamo determined that one-third had no connection to terrorism at all. A subsequent study by Seton Hall University Law School found that over half of the detainees were not determined to have committed any hostile act against the United States, and only 8 percent were characterized as Al Qaeda fighters.
The vast majority of the detainees were turned in not by U.S. forces but by Pakistani or Afghan locals, many of whom received financial bounties. And some of the detainees were hardly caught red-handed on the battlefield. The process for screening detainees was “horrible,” a former Pentagon official told McClatchy newspapers. “‘Captured with weapon near the Pakistan border?’ Are you kidding me?” This, of course, is why lawyers were needed in the first place.
The strongest conservative argument against providing legal counsel to military detainees relies upon precedent. “In the 234 years since [John] Adams and his compatriots fought for our independence,” writes Thiessen, “the United States has held millions of enemy combatants--and not one had ever filed a successful habeas corpus petition until the habeas campaign on behalf of Guantánamo detainees began.”
Maybe the U.S. government has never previously granted such due process to captured enemy combatants. This is because, as Republicans point out ad nauseam in other contexts, this war is unlike previous wars. The enemy wears no uniform, obeys no international conventions of warfare, and so on. We didn’t need to provide habeas corpus rights during World War II because, when we captured a man in a German army uniform, we could be pretty confident that he was actually a German soldier, not some hapless goatherd sold into our custody by a jealous village rival.
The reality that numerous detainees were not a threat to the United States is one of those inconvenient facts that the conservative movement has sealed out of its information loop. You could spend days reading right-wing commentary without coming across any suggestion that the clients of these lawyers were anything but “terrorists.” In fact, this attitude simply carried over from the Bush administration itself. In her book, The Dark Side, Jane Mayer recounts how Bush administration officials came across disturbing evidence that the Guantánamo prison held perhaps 200 innocent people. But, when they brought the information to the West Wing, David Addington, Dick Cheney’s legal counsel, said, “No, there will be no review. The President has determined that they are ALL enemy combatants. We are not going to revisit it!”
From this premise, it’s not such a leap to conclude that the lawyers representing the detainees must actually sympathize with terrorists. The charge that the Department of Justice employs actual Al Qaeda sympathizers has received a wide hearing in respectable forums. Wall Street Journal editorial writer Dorothy Rabinowitz repeatedly insinuated as much (“Can you really say that this was done without political sympathy?”) during a recent televised discussion. National Review’s Andy McCarthy avers that “many of the attorneys who volunteered their services to al Qaeda were, in fact, pro-Qaeda or, at the very least, pro-Islamist.”
The proprietors of these charges see themselves as victims of a double standard. “You can say or do anything when it comes to the Bush lawyers who defended America against the terrorists,” complains Thiessen, “but if you publish an Internet ad or ask legitimate questions about Obama administration lawyers who defended America’s terrorist enemies, you are engaged in a McCarthyite witch hunt.”
Imagine! The liberals will call you a McCarthyite merely because you’re accusing an opposing presidential administration of harboring conscious supporters of a totalitarian movement aimed at destroying America, and you conflate support for basic civil rights with opposition to the defense of democracy, and among your chief spokesmen is an unhinged paranoid named “McCarthy.” Have these liberal accusers no decency? At long last, have they no decency?
Jonathan Chait is a senior editor of The New Republic.