THE DAILY BLADE: Defending The Indefensible
Former assistant U.S. attorney Andrew McCarthy has dubbed them the “al-Qaeda bar” and conservative group Keep America Safe has referred to them as “The al Qaeda Seven” in a video that demanded Attorney General Eric Holder name the white shoe law firm attorneys who represented Gitmo detainees he has hired to work in the Department of Justice:
A Washington Post editorial waves away the Keep America Safe’s insistence that it only wants the transparency that President Barack Hussein Obama promised when he assumed office: “It is an effort to smear the Obama administration and the reputations of Justice Department lawyers who, before joining the administration, acted in the best traditions of this country by volunteering to take on the cases of suspected terrorists.”
The true motives of Keep America Safe may indeed be murky, as The WaPo suspects, but Americans did get transparency as a result of the firestorm surrounding the ad. The day after it aired, FOX News unearthed the names of the mysterious government attorneys who had once represented or advocated for terror suspects pro bono and got confirmation of their identities from the DOJ.
In response to the controversy American Bar Association president Carolyn Lamm released a statement calling the interest in outing the DOJ lawyers – who are being paid by U.S. taxpayers now – a “witch hunt” and said that "Lawyers have an ethical obligation to uphold that principle and provide representation to people who otherwise would stand alone against the power and resources of the government - even to those accused of heinous crimes against this nation in the name of causes that evoke our contempt.” She also cited ABA Model Rule of Professional Conduct 1.2(b): "A lawyer’s representation of a client does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”
This nuance was acknowledged by FOX News, which noted:
The Obama Administration is not the first to hire lawyers who represented or advocated for terror suspects.
Pratik Shah, an assistant to the Solicitor General hired by the Bush Administration, was part of the WilmerHale team that put together arguments for the Boumediene v. Bush case.
As Politico’s Josh Gerstein reported back in January, Shah’s “transition from advocate for war-on-terror prisoners to a government official trying to prevent such prisoners from getting a hearing in court” has put him in the position of having to convince a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit to dismiss habeas corpus petitions from prisoners held at the Bagram Air Base in Afghanistan.
And a post on The Volokh Conspiracy pointed out that most are former Supreme Court clerks.
Citing the very case that Shah won, The WaPo also reminds us [emphasis, The Stiletto]:
[N]o less an authority than the Supreme Court ruled that those held at the U.S. Naval Base at Guantanamo Bay, Cuba, must be allowed to challenge their detentions in a U.S. court. It is exceedingly difficult to exercise that right meaningfully without the help of a lawyer. It is also worth remembering that the Bush administration wanted to try some Guantanamo detainees in military commissions - a forum in which a defendant is guaranteed legal representation.
Nearly three-quarters of the 50 largest law firms in the U.S. have either represented detainees or filed amicus briefs in support of detainees, and as McCarthy argues in the National Review, “[t]he salient issue in the controversy … is this: They were volunteers” [emphasis, The Stiletto]:
The lawyers and their lefty legions expect you to overlook that. … Since they are trained advocates, they figure that if they feign enough indignation over somebody’s “questioning their patriotism,” then Americans will shrink from asking, “How is it patriotic to go out of your way to help America’s enemies in wartime?” …
There is no legal right to counsel in a habeas corpus case. The vast majority of American citizens and aliens who are incarcerated after being found guilty of crimes do not get lawyers to help them challenge the legal proceedings against them or the conditions of their confinement. They must represent themselves. The United States has detained millions of war prisoners in our history, and those prisoners have never been entitled to counsel in order to challenge their detention - indeed, until 2004, they didn’t have a right to challenge their detention, period. And even terrorist detainees who were charged with war crimes in military commissions had no right to representation by private counsel; instead, the rules provided for the assignment of military defense lawyers at the expense of the American taxpayer.
McCarthy puts his finger on the very thing that makes all the harrumphing about upholding the legal profession’s “noble tradition” to represent unpopular causes and unlovable people - despite abhorring the cause and the heinous acts committed by people to further it – set off The Stiletto’s BS meter.
The Gitmo detainees were not without legal representation. Each was assigned a team military defense attorneys (AKA judge advocates or JAGs) who were under the same professional and ethical obligation to aggressively defend their clients' rights as the white shoe lawyers. And, boy, did they – as this June 2006 “Hardball” interview Chris Matthews did with Lt. Commander Charles Swift, the JAG who successfully argued the Hamdan v. Rumsfeld case before the Supreme Court vividly demonstrates:
MATTHEWS: [W]hat was at stake here in this case decided by the court?
SWIFT: At stake was the rule of law. The president had staked out a position that was contrary both to international law and to our domestic statutes in the Uniform Code of Military Justice. What the court did was say that even the president has to follow the law. And that if we're going to try people, we're going to do it under the law, not under an ad hoc system.
MATTHEWS: Does this mean now that our prisoners at Gitmo are going to have lawyers and rules of evidence that they can use to defend themselves?
SWIFT: Well, in a manner of speaking, yes, and one would hope so, because what the court was addressing is a trial wherein you could actually be executed. One would hope in an American system that you have lawyers, that you have rules of evidence. In a trial as politically charged as these, that's what the rules of evidence were developed for. What it says is that these individuals be able to be present during their trials and confront the evidence against them. …
MATTHEWS: [D]o you believe that people who fight us as terrorists deserve Geneva Convention treatment?
SWIFT: It's not whether they deserve it or not. It's how we conduct ourselves. It has to do where if we say that our opponent can cause us not to follow the rules anymore, then we've lost who we are. We're the good guys. We're the guys who follow the rule and the people we fight are the bad guys and we show that every day when we follow the rules, regardless of what they do. It's what sets us apart. It's what makes us great and in my mind, it's what makes us undefeatable, ultimately.
If you want more evidence that JAGs were forcefully defending the Gitmo detainees against what they perceived as a legal overreach (at best) or unlawful policies (at worst) by the Bush administration – meaning, attorneys from top-drawer U.S. firms did not have to rush to offer their services to the detainees for free – click here and here. That they did so was not out of professional obligation, but out of political preference.
They went because they wanted to go (second item), not because they were needed. And that’s the rub.
In Memoriam
Joanne Malkus Simpson, March 23, 1923 - March 4, 2010
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