Civil Liberties

You Say 'Critic,' We Say 'Traitor'

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Keep America Safe's attacks on Justice Department lawyers who once represented terrorism suspects or challenged the Bush administration's detention policies have roused the ire of attorneys and legal scholars from across the political spectrum, including conservatives who generally share the group's views. As Radley Balko noted this morning, Michael B. Mukasey, Bush's last attorney general, has an op-ed piece in today's Wall Street Journal that defends lawyers who defend unpopular clients. On Monday the Brookings Institution released a statement signed by prominent veterans of Republican administrations—including Kenneth Starr, David Rifkin, Lee Casey, Viet Dinh, Orin Kerr, and Charles Stimson (who left the Bush administration after drawing fire for publicly suggesting that businesses should boycott law firms that have represented detainees)—that condemns Keep America Safe's "shameful series of attacks" on the lawyers the group calls "the Al Qaeda 7" as "unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications":

The American tradition of zealous representation of unpopular clients is at least as old as John Adams's representation of the British soldiers charged in the Boston massacre. People come to serve in the Justice Department with a diverse array of prior private clients; that is one of the department's strengths.

The War on Terror raised any number of novel legal questions, which collectively created a significant role in judicial, executive and legislative forums alike for honorable advocacy on behalf of detainees. In several key cases, detainee advocates prevailed before the Supreme Court. To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit.

Even John Yoo, the former Office of Legal Counsel attorney who defended a view of executive power in prosecuting the War on Terror that was so broad even the Bush administration had to repudiate it, implicitly criticizes Keep America Safe in today's New York Times:

The Constitution makes the president the chief law enforcement officer. We had an election. President Obama has softer policies on terror than his predecessor. He can and should put people into office who share his views. [Voters] can decide whether they agree with him or not.

This is not just a matter of lawyers defending fellow lawyers for doing what lawyers do. (After all, Liz Cheney, head of Keep America Safe, is a lawyer too.) It is a matter of insisting on the distinction between defending civil liberties, including the right to counsel and the right to due process, and defending everything that anyone who benefits from those protections believes or does. This is a pretty elementary distinction, and it's hard to believe Liz Cheney does not grasp it. Yet a Keep America Safe ad, referring to Justice Department lawyers who "represented or advocated for terrorist detainees," asks, "Whose values do they share?" This is a blatant attempt to paint those who disagree with Cheney about the right approach to terrorism as disloyal to their country.

Defending Keep America Safe, Washington Post columnist Marc A. Thiessen writes that the lawyers attacked in the ad "were not doing their constitutional duty to defend unpopular criminal defendants." Rather, "they were using the federal courts as a tool to undermine our military's ability to keep dangerous enemy combatants off the battlefield in a time of war." Surely Thiessen understands that critics of Bush's (and Obama's) detention policies disagree with this characterization of the situation. The debate is largely about whether fighting terrorism is legally akin to waging a literal war and, if so, how much additional leeway that gives the president. But by Cheney and Thiessen's logic, anyone who argues that terrorism suspects (including those arrested in the United States) should be given any sort of trial, whether before a civilian court, a military tribunal, or (as Mukasey has suggested) some amalgam of the two, is guilty of "undermin[ing] our military's ability to keep dangerous enemy combatants off the battlefield in a time of war." This is how political opponents are transformed into traitors.