Keep America Safe Cannot Be Persuasively Defended

USA Today is the latest venue where former Bush Administration lawyer Andrew McCarthy asserts that lawyers who represented Guantanamo Bay detainees are harming America’s war effort. The position of he and his allies is persuasively rebutted here by Orin Kerr, denounced by conservative attorneys here, and called out for the tyrannical real world consequences it brings about here. It is nevertheless worth addressing this most recent op-ed directly — it won’t do to leave ideas this wrongheaded unchallenged.

Mr. McCarthy writes:

It is absurd for critics of Keep America Safe to proclaim an American legal tradition of representing alien enemy combatants. There is none. To mask this inconvenient fact, critics speak in gobbledygook about representing “pariahs” or “the unpopular.”

In fact, it is Mr. McCarthy who is masking inconvenient facts. His critics are asserting a general point: As phrased in the letter from conservative lawyers,  “The American tradition of zealous representation of unpopular clients is at least as old as John Adams’ representation of the British soldiers charged in the Boston massacre.” That assertion isn’t meant to prove that the particular class of persons called “alien enemy combatants” are required by law to have representation — invoking John Adams is meant to demonstrate that there is a history of American patriots who chose to represent unpopular clients. As Professor Kerr explained, “there was no right to counsel as we know it today in the Boston courts in the pre-Revolutionary period. At common law, defense lawyers were forbidden: When a right to counsel was recognized, as it was generally recognized in the colonies, it was a right to have a lawyer represent you if you happened to be lucky enough to find one willing to represent you. At the time, many criminal defendants had no counsel at all. This matters because it puts John Adams in a pretty different light, I think. When Adams agreed to represent the English soldiers, he was not fulfilling some sort of obligation: No one had to represent the Englishmen. Adams acted — and was criticized then, but celebrated now, for it — because he agreed to represent the soldiers out of a personal conviction that no person should face a trial without counsel.” It isn’t absurd for critics of Keep America Safe to invoke this tradition — it is directly relevant to the controversy at hand.

Mr. McCarthy writes:

Our actual tradition is to represent accused defendants, no matter how unsavory. 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.

Mr. McCarthy is playing a little rhetorical game: in response to the powerful argument that people accused of crimes should have access to an attorney, he points out that Guantanamo Bay detainees don’t fall under the legal definition of “accused defendants.” It’s as if he expects us to say, “I have a principled aversion to imprisoning folks accused of crimes, and under the everyday meaning of words, these detainees are accused of being our enemies in the War on Terror, and are trying to defend themselves against that accusation — but now that you’ve pointed out that they don’t fall under the legal definition of ‘accused defendants’ you’ve confused me with your legalistic semantics, so I’ll abandon my principled position, and just agree that it’s shameful for lawyers to represent them.” That bit about American inmates having to represent themselves in habeus corpus claims is obviously misleading, by the way, since prior to becoming inmates they were afforded attorneys to prepare for trials where they were convicted despite being afforded due process.

Mr. McCarthy writes:

The relevant American tradition is that victory in war is our highest national imperative. Therefore, all citizens — including lawyers — are obliged to help defeat the enemy, not aid the enemy. And there is no doubt that these enemy lawsuits harm the war effort.

Oh really? This is literally incorrect, for I very much doubt that these lawsuits harm our prospects for victory in the War on Terrorism, nor am I alone in so doubting. If the threat of terrorism succeeds in turning the United States into a country where anyone can be imprisoned without due process or appeal on the mere say so of the president, I’d consider that a great blow to our nation, its freedom, and the Constitution that public officials take an oath to protect and serve. If the jurisprudence that guides how American citizens will be treated during future wars is adjudicated with federal lawyers arguing one side and illiterate foreigners without even a high school education arguing the other side, and the outcomes serve as binding legal precedents, that too would signal that we are losing the War on Terrorism — that our terror level is so high we’ll have allowed Al Qaeda to undermine core liberties without even having to successfully execute another attack. The lawyers volunteering to adjudicate these cases without pay are protecting the liberties of everyone subject to judicial precedents even when they represent terrorist clients, and when they represent clients who are wrongly held at Guantanamo Bay — those people that Mr. McCarthy never acknowledges in his arguments, because their existence is devastating to his world view — then the volunteer lawyers are helping to vindicate the self-evident truth that all men are endowed by their Creator with the right to life, liberty and the pursuit of happiness, an American tradition that Mr. McCarthy apparently finds irrelevant.

Mr. McCarthy writes:

The Supreme Court recognized as much in the 1950 Eisentrager case, involving Nazi enemy combatants captured overseas conducting offensive operations against the U.S. They sought to challenge their detention and trial by military commission. In rejecting their claim, the justices explained that “(i)t would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home.”

Though he quotes the Eisentrager case as if its reasoning applies to the current controversy, Mr. McCarthy cannot muster a persuasive argument that giving Guantanamo Bay prisoners access to the courts fetters our field commanders in Iraq and Afghanistan, because it does not — by the time these folks reached Gitmo they’d long since vacated the region where they interacted with our field commanders, if they interacted with them at all (many detainees were handed over by foreign governments).

Mr. McCarthy writes:

Yes, America’s left-wing legal profession has convinced the liberal bloc of a sharply divided Supreme Court to permit such suits. That doesn’t make them any less harmful, nor did it vest the detainees with a right to counsel.

This is misleading. To quote Wikipedia:

Rasul v. Bush, 542 U.S. 466 (2004), is a landmark United States Supreme Court decision establishing that the U.S. court system has the authority to decide whether foreign nationals (non-U.S. citizens) held in Guantanamo Bay were wrongfully imprisoned. The 6-3 ruling on June 28, 2004, reversed a District Court decision, which held that the Judiciary had no jurisdiction to handle wrongful imprisonment cases involving foreign nationals who are held in Guantanamo Bay. Justice John Paul Stevens wrote the majority opinion and was joined by Sandra Day O’Connor, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, with Anthony Kennedy concurring. Justice Antonin Scalia filed a dissenting opinion and was joined by William Rehnquist and Clarence Thomas.

In other words, it wasn’t just “the liberal bloc of a sharply divided Supreme Court,” the decision also garnered the support of the court’s two Republican appointed centrist swing votes, O’Connor and Kennedy.

Mr. McCarthy writes:

The Justice Department lawyers who represented al-Qaeda were volunteers. Of all the causes to which they could have donated their services, they chose our enemies. They are no doubt sincere in claiming they sought to vindicate principles, not terrorists. But the other stubborn fact is that, since they took the helm at Justice, counterterrorism policy has become much more terrorist friendly.

There are several things wrong with this passage. Its most glaring internal inconsistency is the concession that these lawyers sincerely sought to vindicate principles, not terrorists, and the contradictory slur prefacing it that “of all the causes to which they could have donated their services, they chose our enemies.” Mr. McCarthy himself admits that “our enemies” weren’t their “cause” but he asserts it anyway.

His larger mistake is the assertion that “counterterrorism policy has become much more terrorist friendly.” In fact, one goal of America’s terrorist enemies is to undermine the liberties that Americans enjoy, irrevocably altering our way of life. Thanks to lawyers representing Gitmo detainees, counter-terrorism policy no longer tramples on the civil liberties of Americans as badly as it briefly did, undermining the safeguards that protect us from a tyrannical federal government.

Mr. McCarthy writes:

Keep America Safe is not trying to destroy or disqualify Justice’s al-Qaeda lawyers, as the Obama Justice Department has tried to do to Bush lawyers. The group sought accountability from the self-proclaimed “most transparent administration in history.” What is shameful is that that should be controversial.

It beggars belief that Mr. McCarthy would have us believe that Keep America Safe merely “sought accountability” from Justice Department lawyers who represented Gitmo detainees. Keep America Safe produced a television commercial where the attorneys in question were labeled “the Al Qaeda seven,” a label that flashed on screen while shadowy figures loomed menacingly and foreboding music played.

As Matt Corley points out:

Not only does the ad suggest that the lawyers might “share” the “values” of al Qaeda, but it also flashes an image of a headline from the far right Investor’s Business Daily asking if the Justice Department was the “Department of Jihad?” “Just whose side are they on?” asked the editorial. When Politico’s Smith first reported on the ad, Keep America Safe spokesman Michael Goldfarb gave him a quote that essentially accused the lawyers of treason, saying that they “did far more than represent criminals.” “They have propagandized on behalf of our enemies, engaging in a worldwide smear campaign against the CIA, the U.S. military and the United States itself while we are at war,” said Goldfarb.

But Mr. McCarthy cannot understand why this should be controversial. That is a pretty damning indictment of his capacity for analysis and basic comprehension skills.


6 Responses to “Keep America Safe Cannot Be Persuasively Defended”

  1. kurtfawnigat Says:

    For the Cheney/Neocon cabal, there are not now, and have never been enough “terrorists, enemy belligerents” or attacks. That’s why staged foiled plots are now described as “terror events” and combatants replaced with belligerents.
    Without Padilla/Jihad Jane perp walks aided and abetted by the MSM, the teabaggers will lose interst. So KKKAS throws them Holder and Napolitano. Lawyers, jihadists, union officials…it doesn’t matter. We need visuals damnit!
    The editorial is laughably disingenuous. Obama’s DOJ and the mighty on-message left crucifying Yoo and Theissen? They got a fucking total pass- kept their professorships and got sweet heart op/ed deals at the Philly Enquirer and the Post.
    Me thinks the folks that ran the destabilization of democracy in places like Chile and El Salvador using SS intelligence/CIA assets like Klaus Barbie doth protest too much.
    Dollars to donuts poppa bush was barbie’s handler.
    And these people are the builders of nations? What a disturbingly American irony.
    And how sweet is the fact that the tortured defense of those who would rape children in front of their families to keep us safe has the byline “McCarthy.”
    Fucking stunning.

  2. dougem Says:

    I wonder how Mr. McCarthy views the rights of prisoners of the War on Drugs? Should these individuals be denied their civil liberties because they are enemy combatants in the War on Drugs? Mr. McCarthy and his followers need to listen to their own arguments and be afraid, be very afraid of what they are saying.

  3. kurtfawnigat Says:

    sorry for the double…thought this would flesh out the Napolitano thing: see “chertoff”

  4. “The First Thing We Do, Let’s Kill All The Lawyers” « Around The Sphere Says:

    […] Conor Friedersdorf […]

  5. Sean Nelson Says:

    “The relevant American tradition is that victory in war is our highest national imperative.”

    No, Mr. McCarthy, it’s not. America’s highest national imperative is to remain a free nation of laws. Claiming that defendants who are accused of REALLY nasty crimes are not entitled to a defense does damage to both our freedom and rule of law.

    What I don’t get is how these people can look themselves in the mirror after arguing one day that some defendants don’t have the same rights as others, then turning around and making originalist constitutional arguments. Either McCarthy and his cronies are distressingly capable of holding two contradictory ideas in their heads at once, or they are not principled about anything except finding reasons to smear their political opponents. I’m beyond imagining that even McCarthy tells himself that he’s arguing in good faith.

    As always, good job skewering these clowns, Conor.

  6. andylevinson Says:

    From the mission statement of keep america safe website:

    “Keep America Safe seeks to influence public policy by encouraging dialogue between American citizens and their elected representatives in order to produce legislation and executive action that enhances the national security of the United States.”

    Yes, we can look to our corrupt public officials to keep us safe……..

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