Al-Qaeda Seven Ain't John Adams

John Adams, American Founder and talented lawyer, represented the British soldiers prosecuted for the “Boston Massacre”. There has been a move — successfully — to get the Obama DOJ to release the names of seven political appointees in the Attorney General’s office who voluntarily represented Gitmo detainees — aka captured member of al-Qaeda. Kenneth Starr and other Republican attorneys have defended these lawyers as acting in the best tradition of American lawyers and comparing them to John Adams. Andrew McCarthy of National Review Online calls bullshit on that in the Wall Street Journal. Very rarely do I completely agree with an op-ed. I completely agree with this one:

To the contrary, the Justice Department’s al Qaeda lawyers were volunteers, just as Mr. Holder volunteered in the Heller case. Unlike the British soldiers represented by John Adams, the Gitmo detainees are not entitled to counsel. They are not criminal defendants. They are plaintiffs in offensive lawsuits, filed under the rubric of habeas corpus, challenging their detention as war prisoners. The nation is at war, and the detainees are unprivileged alien enemy combatants. By contrast, the United States was not at war with England at the time of the Boston Massacre, and the British soldiers were lawful police, not nonuniformed terrorists.

There is no right to counsel in habeas corpus cases. Thousands of American inmates must represent themselves in such suits—there is no parade of white-shoe law firms at their beck and call. Until 2004, moreover, enemy prisoners were not permitted to challenge their detention at all. The Supreme Court rejected such claims in the 1950 Eisentrager case, precisely because they damage the national war effort. Yes, left-leaning lawyers have convinced the Supreme Court’s liberal bloc to ignore precedent and permit Gitmo habeas petitions. That neither makes these suits less damaging, nor endows the enemy with a right to counsel.

Advocating for the enemy is a modern anomaly, not a proud tradition. Defense lawyers representing accused criminals perform a constitutionally required function. Not so the Department of Justice’s Gitmo volunteers. They represented al Qaeda operatives because they wanted to, not because they had to. The suggestion that they served a vital constitutional function is self-adulating myth. Their motive was to move the law in a particular direction.

It emerged this week that Heller was not Mr. Holder’s only amicus brief. He also filed one on behalf of al Qaeda terrorist Jose Padilla, an enemy combatant detained for plotting a post-9/11 “second-wave” of mass-murder attacks. Mr. Holder failed to disclose the brief at the time of his confirmation hearing. It is easy to see why he may have preferred to forget it. The brief advocated a return to the pre-9/11 approach of regarding al Qaeda as a cabal of criminals to be prosecuted, not enemies to be vanquished militarily. Unsurprisingly, this is exactly the policy he has since implemented as attorney general, in conjunction with the Department of Justice’s other former detainee lawyers.

Go read the whole thing. Lawyers covering for lawyers is detestable to me — especially when it’s covering despicable acts such as volunteering to help the enemy sue your own government. Kenneth Starr should know better. Shame on him and any lawyer who equates this with any defense attorney doing his or her constitutional duty.

Here is the case for unpopular clients by Stephen Jones (Timothy McVeigh’s lawyer) — also in today’s Wall Street Journal.

The criticism and shrill demagoguery of Keep America Safe would denigrate not only these principles but fundamentally undermine due process of law. These partisan attacks are misplaced, gratuitous and weaken our democratic ideals. The identities of the lawyers are sought to embarrass and demonize them personally and professionally, to try to dishonor them. It is an effort to intimidate other lawyers from honoring their professional responsibility.

The day when scare mongers can intimidate lawyers into not doing their jobs is a day in which liberty is threatened. The justice of a society is measured not by how it treats its best, but how it treats its worst.

All lawyers should stand firm and reject the unwarranted insinuation that the Department of Justice lawyers are unpatriotic allies of terrorists, or that their past cases will shade their responsibilities in their current positions. The same goes for Republicans such as myself who value the traditions of our party and who remember that the first elected Republican president himself, Abraham Lincoln, defended unpopular causes and clients, even those accused of murder.

I’m here to tell you these lawyers believe this crap. They sincerely see no difference between a run of the mill criminal defendant who is an American citizen and sworn enemies of the United States. If these moral idiots ultimately have their way — there won’t be any defense lawyers because there won’t be any liberty or right to counsel.

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