Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“Violence, naked force, has settled more issues in history than has any other factor, and the contrary opinion is wishful thinking at its worst.”     Robert A. Heinlein,    Starship Troopers

March 5, 2010

Liz Cheney, Bill Kristol, And The Shameful NeoCon Attack On America’s Legal System

by Doug Mataconis

The latest controversy of the day among many on the right, led principally by Liz Cheney and William Kristol, involves attacking Justice Department lawyers who represented alleged members of al Qaeda or the Taliban detained at Guantanmo Bay.

As Kristol puts it:

[L]awyers now at the DOJ worked on the historic Boumediene case. That case established the Gitmo detainees’ right to challenge their detention in habeas corpus hearings. In effect, the habeas proceedings have taken sensitive national security and detention questions out of the hands of experienced military and intelligence personnel, and put them into the hands of federal judges with no counterterrorism training or expertise. That lack of experience shows. For example, in one recent decision a federal judge compared al Qaeda’s secure safe houses (where training, plotting and other nefarious activities occur) to “youth hostels.” The habeas decisions are filled with errors of omission, fact, and logic.

Still other lawyers did work on behalf of these well known terrorists: Jose Padilla (an al Qaeda operative dispatched by senior al Qaeda terrorists to launch attacks inside America in 2002), John Walker Lindh (the American Taliban), and Saleh al Marri (who 9/11 mastermind Khalid Sheikh Mohammed sent to America on September 10, 2001 in anticipation of committing future attacks).

Now, we don’t know what assignments these lawyers have taken on inside government. But we do know that they openly opposed the American government for years, on behalf of al Qaeda terrorists, and their objections frequently went beyond rational, principled criticisms of detainee policy.

Not everyone on the right agrees with Kristol and Cheney on this, of course. Two former Bush Administration DOJ officials, John Bellinger III and Peter D. Keisler, have come to the defense of what Cheney, Kristol, and their acolytes are calling “The Al Qaeda Seven”. and one very conservative blogger who has no love for the Obama Administration puts it this way:

The lawyers who represent criminals do not represent them because they support crime, they represent them because they support our system of justice. So too those who represented alleged members of al-Qaeda do not support their beliefs but our beliefs in the right to a fair trial and the right to a lawyer. Our system of justice depends on lawyers vigorously advocating for the rights of criminals to receive a fair trial. I couldn’t do it–I’m more of a “try ‘em and fry ‘em” kind of lawyer–but somebody has to do it. And to seek to disqualify lawyers for simply doing their jobs because we don’t like who they represented is plain stupid. Oppose the Obama Administration and Attorney General Holder when they are wrong, not merely for the sake of opposing them.

As Walter Dellinger points out in today’s Washington Post, this attack on the legal profession is nothing short of shameful:

It never occurred to me on the day that Defense Department lawyer Rebecca Snyder and Lt. Cmdr. William Kuebler of the Navy appeared in my law firm’s offices to ask for our assistance in carrying out their duties as military defense lawyers that the young lawyer who worked with me on that matter would be publicly attacked for having done so. And yet this week that lawyer and eight other Justice Department attorneys have been attacked in a video released by a group called Keep America Safe (whose board members include William Kristol and Elizabeth Cheney) for having provided legal assistance to detainees before joining the department. The video questions their loyalty to the United States, asking: “DOJ: Department of Jihad?” and “Who are these government officials? . . . Whose values do they share?”

(…)

That those in question would have their patriotism, loyalty and values attacked by reputable public figures such as Elizabeth Cheney and journalists such as Kristol is as depressing a public episode as I have witnessed in many years. What has become of our civic life in America? The only word that can do justice to the personal attacks on these fine lawyers — and on the integrity of our legal system — is shameful. Shameful.

Moreover, as one blogger points out, these lawyers were doing what every lawyer does:

[L]awyers represent clients. That’s what they do. It’s a mistake to assume that because Lawyer A represents Client B, he approves of whatever it is that Client B was accused of. He may genuinely believe that Client B is innocent. Even if he doesn’t, he almost certainly believes that Client B is entitled to a fair trial to establish his guilt or innocence. And he absolutely believes that he wants to collect his paycheck, in return for which he must do what he does, which is represent clients (by either personal hiring or government appointment to the job).

Just ask a guy named John Adams:

“I. . .devoted myself to endless labour and Anxiety if not to infamy and death, and that for nothing, except, what indeed was and ought to be all in all, sense of duty. In the Evening I expressed to Mrs. Adams all my Apprehensions:That excellent Lady, who has always encouraged me, burst into a flood of Tears, but said she was very sensible of all the Danger to her and to our Children as well as to me, but she thought I had done as I ought, she was very willing to share in all that was to come and place her trust in Providence.

“Before or after the Tryal, Preston sent me ten Guineas and at the Tryal of the Soldiers afterwards Eight Guineas more, which were. . .all the pecuniary Reward I ever had for fourteen or fifteen days labour, in the most exhausting and fatiguing Causes I ever tried: for hazarding a Popularity very general and very hardly earned: and for incurring a Clamour and popular Suspicions and prejudices, which are not yet worn out and never will be forgotten as long as History of this Period is read…It was immediately bruited abroad that I had engaged for Preston and the Soldiers, and occasioned a great clamour….

“The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the Jury was exactly right.

Yes, that’s right. One of America’s greatest Founders, a member of the Continental Congress, and Second President of the United States defended the British soldiers accused of killing five people in the Boston Massacre. He did it because he believed that everyone deserved a defense.

It’s a fact of life that lawyers who practice criminal law, and sometimes even us civil attorneys, will eventually represent disreputable clients. Some do it because they are doing their job, some do it because they believe everyone deserves a defense, and they deserve our thanks, not our condemnation.

O/P: Below The Beltway

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6 Comments

  1. http://cousinavi.wordpress.com/2010/03/06/liz-cheneys-real-motives/

    Comment by cousinavi — March 5, 2010 @ 1:47 pm
  2. “He did it because he believed that everyone deserved a defense.”

    That is an apples and oranges comparison. Adams defended those soldiers because a crowd threw stuff at them including clubs. The soldiers fired from the middle of a riot. They defended themselves from an enraged mob. Without Adams, the soldiers would not have received proper defense.

    Almost nobody is saying alleged al Qaeda and Taliban terrorists do not deserve their day in court or proper attorneys to defend them. The problem is that the cases of these alleged terrorists rightly deserve to be heard by military tribunals, not by civilian courts. By trying to bring these terrorists into our civilian courts, Obama’s legal people have made a mess of things. This idiot effort by Obama’s legal people to try alleged al Qaeda and Taliban terrorists in our civilian courts makes them demonstrably incompetent — and guilty of having their priorities all screwed up. They are suppose to protect our legal system, not subvert it.

    This Obama legal mess has nothing to do with the obligation of lawyers to do their job. The problem is an incompetent president and incompetent attorneys. Instead of trying to lead the charge defense of such rank stupidity, you should be leading the charge against it. Obama’s lawyers are giving your profession a bad name.

    Consider the problem. Soldiers on the battlefield do not arrest people or collect evidence. Soldiers kill the enemy and break the enemy’s things. That is why we use soldiers only when we have not other alternative.

    In the event we must try the enemy or one of our own soldiers, the treatment of a “defendant” and the rules of evidence must differ. That is why we must use military tribunals instead of civilian courts. Otherwise, we cannot give anyone suspected of war crimes anything even approaching a fair trial. Without the compromise of a military tribunal, we must either lock terrorists up and throw away the key, or we must let them loose.

    Obama’s Justice Dept has not solved that dilemma by bringing alleged al Qaeda and Taliban terrorists into our civilian courts. If we allow these fools to bring people captured by our soldiers into our civilian courts, we either have to corrupt our courts by turning them into military tribunals, or we must let the terrorists loose. It should be obvious that either of these options is foolish.

    The terrorists should be tried by genuine military tribunals.

    Comment by Citizen Tom — March 5, 2010 @ 6:59 pm
  3. The three military tribunals held thus far under the Bush administration, resulted in acquittals in two cases.

    To assume that Military Tribunals will result in higher conviction rates is like throwing a dart at a verdict and hoping it lands on guilty.

    Detainees receive JAG defense lawyers as in criminal cases.

    While I do not support holding trials for detainees in US courts, I support their right to an attorney. Imagine if black men were denied lawyers in the south, during the pre-civil rights error. Several were executed with hardly any justice by white southern juries.

    Comment by Gone_Rogue — March 6, 2010 @ 9:38 am
  4. Gone_Rogue – What you are forgetting is that a civilian court promises things that are not necessary for an effective military tribunal. When our government arrests civilians, even mass murderers, we expect them to be read their Miranda Rights, given a speedy trial, tried by a jury of their “peers”, given all the information to the government (no secrets) and not subjected to military interrogation. When police officers and elected officials violate such rules, we also expect the case to be thrown out of court.

    On the other hand, the first job of a military tribunal is to protect the United States. We don’t commit suicide to protect the rights of people we just fought on the battlefield.

    Comment by Citizen Tom — March 6, 2010 @ 10:07 am
  5. [...] Liz Cheney, Bill Kristol, And The Shameful NeoCon Attack On America’s Legal System Leave a Comment [...]

    Pingback by A DISAGREEMENT WITH JOHN DOE « Citizen Tom — March 6, 2010 @ 10:15 am
  6. dropped a word

    given all the information “available” to the government (no secrets)

    Comment by Citizen Tom — March 6, 2010 @ 10:20 am

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