Tarring Guantanamo Defense Lawyers as Traitors

A writer at National Review resurrects one of the ugliest smears in the War on Terrorism

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In the pages of National Review Online, former federal prosecutor Andy McCarthy has resurrected one of the most scurrilous charges recently made in American politics. His targets are attorneys who acted as counsel for Guantanamo Bay detainees at the request of the Bush administration.

Earlier this week, documents obtained by Wikileaks reminded us that some Gitmo detainees were physically abused -- leashed like dogs, sexually humiliated, and forced to urinate on themselves, for example -- and that other detainees were held in the prison despite the fact that the U.S. government itself affirmed their innocence. Caging human beings thousands of miles from home despite knowing that they are innocent is as persuasive a demonstration of the need for legal counsel as can be imagined.

But McCarthy fails to mention that innocents were held at the prison, or that abuses were documented. Instead he implies that the seven attorneys doing pro-bono work on behalf of detainees were borderline traitors:

Can we finally agree that they really are the "al-Qaeda Seven," just like lawyers who choose to represent mobsters are commonly called "mob lawyers"? Caterwauls cascaded down upon Liz Cheney, Bill Kristol, and Debra Burlingame several months back when their organization, Keep America Safe, had the temerity to apply the "al-Qaeda Seven" label to seven DOJ lawyers who volunteered their professional services to our enemies, gratis, to help them file lawsuits against the American people, challenging their detention as enemy combatants in their war against the United States.
How dare anyone suggest that volunteering to help the enemy during wartime might somehow intimate a teeny bit of sympathy for the enemy, carped Mr. Holder -- having himself voluntarily filed an amicus brief on behalf of Jose Padilla, the "dirty bomber" sent to America by al-Qaeda to attempt a second wave of post-9/11 attacks. The case of Padilla (who has since been convicted in yet another terrorist plot) was just one of the many matters Holder's firm, Covington & Burling, handled while devoting hundreds of pro bono hours to at least 17 terrorist enemy combatants.

These charges were long ago denounced by high ranking officials in the Bush Justice Department as a "shameful series of attacks ... both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counter-terrorism adjudications." Anyone who levies them is showing him or herself unable to understand several rather simple points: 1) the fact that a person is accused of being a terrorist by the government doesn't make it so; 2) that every fair legal system affords the accused a representative capable of understanding the process, a safeguard established for the innocent, and that by necessity extends to the guilty; 3) that only a subset of Gitmo detainees were even accused of having al Qaeda ties; 4) Adam Serwer put this last point best:

The attorneys who challenged the Bush administration's national-security policies saw themselves as fulfilling their legal obligations by fighting an unconstitutional power grab. At heart, this was a disagreement over process: Should people accused of terrorism be afforded the same human rights and due process protections as anyone else in American custody? But rather than portray the dispute as a conflict over what is and isn't within constitutional bounds, conservatives argue that anyone who opposed the Bush administration's policies is a traitor set to undermine America's safety from within the Justice Department.

Despite having had no answer for these arguments, McCarthy continues to label his fellow Americans with the moniker of the enemy. In so doing, he reaffirms his place in the pantheon of American McCarthyites who react to foreign threats by turning on their fellow citizens with baseless insinuations. It is this behavior that actually weakens the country's unity and resolve in wartime by politicizing the struggle, and making some Americans feel as though the war at hand is nothing but an ideological cudgel for hawks to use against their domestic political adversaries.

If McCarthy wants to decrease the chance of his fellow citizens volunteering as attorneys for terrorist clients in the future, he might lobby the government to avoid sweeping up a bunch of innocent people using the most haphazard process imaginable, imprisoning them on a foreign island in a brazen attempt to put them beyond the law, and mixing dangerous terrorists in with these innocents and nationalist fighters. The national conscience might be even less stirred to come to the defense of the detainees if the government avoids instituting an illegal regime of torture.

Of course, if McCarthy acknowledged the innocents held at Gitmo, the brazen claims of being beyond the jurisdiction of the United States, and the detainee abuses, he might see himself that the Gitmo bar wasn't volunteering their services on behalf of the enemy -- they were working on behalf of every citizen who values the rule of law and the most basic norms of Western justice.

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.


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