Nearly 20 years ago, I asked the late William Kunstler about his philosophy of lawyering. A flamboyant leftist who proudly represented jihadists just as he proudly represented many other anti-American radicals, Bill succinctly replied, “Everybody’s entitled to a lawyer, but nobody’s entitled to me!”
When speaking with him outside the lines of litigation, I was always beguiled by the aging rogue’s lack of pretense. Kunstler maintained that attorneys are under no obligation to take on every client who walks in the door. Once you took a case, though, it was your duty to give it your all. And because giving his all and zealously ensuring that the client got every available advantage was the attorney’s first duty, a lawyer had to be given a lot of leeway in choosing the clients and causes to which he would dedicate himself. It was one of the few things on which we agreed.
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In these chats, there was about Kunstler a refreshing absence of twaddle about the lofty nobility of his choices, a marked contrast to the drivel that flows from the pen of Conor Friedersdorf. At The Atlantic on Thursday, Mr. Friedersdorf delivered himself of what, even by his standards, was a shrill rant, provoked by my recent column on the hypocrisy of the Lawyer Left, which finds the American people’s support of traditional marriage too distasteful to defend but can’t queue up fast enough to volunteer its wares to assorted radicals, psychopaths, and deadbeats.
I used the occasion of King & Spalding’s abandonment of its Defense of Marriage Act clients — congressional representatives of the American people seeking to turn back challenges to DOMA — to highlight facts the legal profession, in its arrogance, dares you not to notice.
As an institution, the profession is the vanguard of the movement Left. Its votaries make their choices about representation based on progressive politics. Attorneys who are resistant to the cause but desperate to remain in the club are pressured to conform or at the very least to profess admiration for the heroic good faith in which the Lawyer Left remorselessly pursues its agenda. Thus can the profession reliably bank on cover from the GOP Lawyers Guild whenever a left-wing attorney gets nominated to a high government post or undertakes to champion some anti-bourgeois cause — and also bank on there being no need to return the favor.
K&S understands how the game is played. The firm wants to be perceived as supportive of gay marriage. In the same way, through its pro bono work for terrorists and death-row murderers, it wants to be perceived as supportive of judicializing warfare and expanding the rights of criminals. The firm figures it can’t afford to be on the wrong side of the culture war.
To most Americans, the progressive punch-list is deeply unpopular. Fortunately, progressives like Friedersdorf are much smarter than the rest of us — just like our progressive president, who, we learned from the Washington Post’s Dana Milbank this week, is actually too smart to be president. Part of what makes them so smart is their Alinskyite penchant for coopting causes and language. Friedersdorf is a “conservative,” don’t you know, skilled at cloaking legal radicalism in high-minded tropes about fidelity to our constitutional traditions.
He is in a snit because, unlike the GOP Lawyers Guild he prefers, I can’t seem to follow the Gitmo script, which calls for showering the Lawyer Left with fawning praise that can be used like a Black Panther billyclub to beat down conservative critics. Specifically, Friedersdorf is outraged by my “brazen” repetition of an effective critique the Left thought it had smothered months ago: namely, that it is perfectly fitting to label as the “al-Qaeda Seven” a group of seven lawyers who, before joining the Obama Justice Department, volunteered their services to the enemy in wartime.
I don’t know where Friedersdorf was when the Lawyer Left was calling us Bushitler-era prosecutors “the American Taliban.” In any case, as I’ve made clear before, those who coined the term “al-Qaeda Seven” were obviously not saying these lawyers were members of al-Qaeda or that they endorsed terrorism — though they are, for my taste, too indifferent to the barbarity of terrorism. The point is that they made a choice to do something they did not have to do, that no lawyer had to do. It was therefore fair to judge them on their choice, to infer a sympathetic ear for the terrorist portrayal of a corrupt and unjust America. It was also reasonable to predict that, on their watch, the Justice Department would do things like return terrorism to a criminal-justice problem rather than a wartime military challenge, push for enhanced due process for terrorists, turn the battlefield into a crime scene complete with Miranda warnings for captured combatants, and elevate “Muslim outreach” over aggressive enforcement against Islamist groups that materially support terrorists. (Guess what happened.)
"The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive." – Antonin Scalia
I'll respond at length in due time. For now, readers should note the following:
* Andy McCarthy still fails to acknowledge that the Bush Administration held people at Gitmo long after our own government found them to be innocent.
* Mr. McCarthy also ignores the fact that cases involving Gitmo detainees set precedents that applied generally, not merely to the specific people being held. That's why, for example, The Cato Institute filed an amicus brief in the Padilla case: External Link
McCarthy would have you believe that it is only "The Lawyer Left" and "progressives" who disagree with him.
In fact, many conservatives and all libertarians disagree with him too. External Link
Are all of those Bush Administration officials siding with Al Qaeda against America? Or is Mr. McCarthy perhaps being misleading in his characterizations?
Since I'm not a lawyer, every lawyer who reads this will discount what I say. Nonetheless, here goes...
Four basic points seem apparent:
1) It would appear from Mr. Friedersdorf’s remarks that his stance depends on semantic ploys, including especially the definitions of 'precedents' (always the favorite of those who rewrite the Constitution based on their whims and leftist agendas), 'our own government', 'indefinite imprisonment', 'applied generally', and 'disagree'. Until and unless he defines these terms, I doubt whether anybody should trust what he says.
2) In his reference to 'many conservatives and all libertarians', Mr. Friedersdorf attempts the hoary argument from authority, which is a logical fallacy.
3) In no way did Mr. Friedersdorf attempt to respond directly to McCarthy's statement that centuries-old law of war is the “rule of law”, nor did he respond to the point that justices are merrily butting into the area where Constitutional separation of powers clearly says they should not go. Of course, for the left, redefining the Constitution is de rigueur.
4) Mr. Friedersdorf makes the same erroneous assumption inevitably made by all those on the left, specifically that since Bush was a Republican, ipso facto he was also a conservative, and thus all conservatives automatically revere what was done by his administration. However, nothing could be further from the truth. First and foremost, the appeal that 'Bush did it too', or 'Bush did it first' is nothing but a childish whine made by those with the mental maturity of a seven-year-old. More importantly, conservatives refuse to expend any time or energy defending Bush, because he was at best a right liberal. I would go so far as to say that Bush was Obama-lite, or conversely, Obama is Bush on steroids. No love lost here, I'm aftraid.
No doubt, Mr. Friedersdorf will also “respond at length in due time” to these points, but so far, Mr. McCarthy seems to be well ahead in this debate.
Thanks Mr. McCarthy. Tremendous as always but no surprise.
Lawyers...The Devil's Advocate...
"acquittal after acquittal after acquittal until the stench of it reaches so far and high into heaven that it chokes the whole freekin' lot of them"...
As the Devil said, "vanity definitely the my favorite sin".
Mr. McCarthy's ad hominem attacks on the Guantanamo lawyers is quite unhelpful, and indeed, one cannot help but notice the similarity between the modern-era and 1950s-era McCarthyism. Specifically, both McCarthys allege that their political opponents are motivated by malicious intent against the country, or at least are sympathetic for those who are so motivated.
In truth, we need to step down the rhetoric, and recognize that either side is not motivated by some sort of intent to destroy the Nation or the Constitution, but that they have very different ideas on what fidelity to those mean.
Mr. McCarthy rests his position squarely on democracy: if the Congress so allows (in this case, by the Authorization for Use of Military Force) the President may detain anyone, anywhere, for any length of time, without any judicial review or oversight. Period. This state of affairs may go on for decades (and will be on its second decade this Fall). The only permissible check on the President is the democratic process: the Nation may elect a new President, or elect a new Congress so overwhelmingly that they can withdraw the AUMF over his veto. He has admitted this at a speaking event when I pushed him for a direct answer. When I asked him about those people that are actually innocent, his response was, "that's a shame, but that's what happens in war." (Question: could the President execute someone in Guantanamo without trial? After all, killing is at the heart of what happens in war; according to his logic, I don't see why not.)
The lawyers that defend the Guantanamo detainees have a very different view of the Constitution. They believe that it does not merely grant the people, as a whole, the right to elect their leaders. It also grants rights to individuals -- even unpopular ones -- and places firm limitations on the power of government officials to infringe upon those rights. The lawyers that McCarthy slanders as the "al-Qaeda Seven" believe that these Constitutional principles are fundamental to our Nation, and therefore it is important to fight to preserve them, even if the clients through whom they act may be bad men (which of course, we do not know -- a number of the clients in the high-profile cases insisted upon their innocence, and the proof of guilt was almost entirely absent).
Now, Mr. McCarthy clearly disagrees with this. But he should concede that these disagreements come from principled differences of opinion. It is not fair to impute some sort of terrorist-sympathizing motive to these lawyers, anymore than it was fair to claim that hundreds of members of the Truman State Department were communists.
Nice Scalia quote from Mr. Friedersdorf. Of course, Scalia was one of the dissenters in the detainee cases, because he understands that our "Anglo-Saxon" system was there to protect English freemen, not, say, captured Viking raiders or the Burghers of Calais.
It was a mistake for President Bush to comply with Hamdan and Boumediene. He should have made a point about separation of powers by ignoring the decisions. It was also probably a mistake to "judicialize" the detainees in the first place by holding trials with military commissions. When we were done interrogating them, those that were not deemed safe to release should have been summarily shot. To do so would have been 100% legal.
Beginning and ending with the old lefty war-horse William Kunstler, who opposed you in his last case (defending Sheik Omar Ahmad Rahman), is rhetorically brilliant. In comparison, Friedersdorf appears very callow indeed.
While I agree with Mr. McCarthy in principle, I disagree with him in reality.
As a former Marine, I can tell you one fundamental thing - "military" and "intelligence" do not go together. In fact, they should never be in the same sentence.
If military intelligence tells me that the sun will rise tomorrow, I will stock up on enough candles and batteries to last a lifetime.
While I'm sure there are plenty of Al Qaeda terrorists at Gitmo, I would never take someone's word for it. Mr. McCarthy seems to assume everything he hears is factual. That's where I respectfully disagree.
Mr Con Friedersdorf is and always was a progressive pretending to be a conservative.
One would have thought Andrew Sullivan, David Brooks, David Gergen, David Frum completely divided that market niche in political punditry among themselves, fraudulent though that niche is.
But young Mr Con Fr obviously hopes to do some business in this well worked-out niche.
May be he is right, at least at NRO that made him a trusted commenter.
How that happened? Are there progressives at NRO Komment Kontrol?
The left uses the excuse of John Adams' defense of the British to cover its own anti-Americanism. It's false cover. Adams cannot truthfully be used as a flag for the "blame America first" crowd.
Thank you for the eloquent essay, which, as far as i'm concerned, underscores the number one duty of our federal government - to protect its citizens, our country, our way of life - against attack from without and from within. You provided new information re: our western "war law."
When the Obama administration pursued its Gitmo agenda to release detainees and try detainees (most of whom I presumed were not US citizens) in our (non-military) court system, I, like so many ordinary citizens who'd not given thought to this subject, were puzzled. My reaction - "Say, what?"
Mark Levin shed his light on the subject at the time (and led me today to this article, in fact - you're on his Facebook), clarifying for me, why I was repulsed and alarmed.
I've often considered, rather absentmindedly, but enough to say, No way, Not me, the lawyer's profession: the goal is to WIN cases (else one doesn't have a profession). Defending the indefensible/the guilty, as well as the other side of the profession: prosecution (how convinced would I have to be of the guilt of the defendant to be effective, to allow myself to win? what would I do if I discovered/decided that the defendant was not guilty?), serve up serious spiritual and practical challenges I am not up to.
In your article you speak to the right of an attorney to not accept a case. I suppose that's true for some attorneys, especially the attorneys in your article, but it still leaves me troubled about the condition that many attorneys (and I, for example) undoubtedly face in professional life: defending the indefensible or prosecuting/suing the non-guilty. "Loving The Law" above all else, even truth, leaves me cold.
I'm rambling. But thanks for giving a venue to it.
What McCarthy says about the intellectual dishonesty of these terrorism-specialist lawyers is right on the money. At least mob lawyers are well aware of the real motivations behind their choice of clients.
Unfortunately, the terrorism specialist lawyers are self-deceived seeing themselves in heroic terms for coming to fight with all their legal prowess for those who are dedicated to our demise.
I hope you aren't going to waste any more rebuttal space at NRO with your deluded illusions of nobility, Conor Friedersdorf. Save it for the sites that cater to the easily deceived.
CF quotes in his rebuttal: "The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive." – Antonin Scalia
Hmmmm. Even for non-citizens/citizens with allegiance to other Powers who have given real cause to believe that they are OUR ENEMY and want to destroy that which they will exploit so they can achieve their goals? HARDLY! Good God, I'm not a lawyer, I'm not brilliant, I'm just a regular person, but even I can see that someone who believes that we're obligated to defend the enemy IS the enemy, or at least is aiding and abetting the enemy. Save us from the insufferable brain-wreck of the Left.
Re Jose Padilla, Bush asserted, and for a time exercised, the power to detain an American citizen, on American soil, and hold him without charge, without bail, and without access to an attorney, indefinitely. He backed off only when the case was about to reach the Supreme Court. The degree of blind trust in government one must have to believe that this power, if established, would be used only against terrorists, or accused terrorists, is dumbfounding. I carry no brief for Padilla - but I'm grateful to the lawyers who represented him before he was put in the ordinary criminal justice system. Otherwise, today we might have been living under a precedent that the President has the legal authority to arrest an American citizen on American soil and hold him without charge, without bail, and without access to an attorney, indefinitely - solely based on the President's say-so. Think about that next time we have an OK City type bombing, or an abortion clinic bombing. The fight to protect civil liberties against encroachment by government is a noble one - irrespective of the client - because the government's desire to increase its power is insatiable and must be fought at every turn.
Re Jose Padilla, Bush asserted, and for a time exercised, the power to detain an American citizen, on American soil, and hold him without charge, without bail, and without access to an attorney, indefinitely. He backed off only when the case was about to reach the Supreme Court. The degree of blind trust in government benevolence one must have to believe that this power, if established, would have been used only against terrorists, or accused terrorists, is dumbfounding. But for the lawyers who represented Padilla before he was put in the ordinary criminal justice system, today we might have legal precedent that the President has the legal authority to arrest an American citizen on American soil and hold him without charge, without bail, and without access to an attorney, indefinitely - solely based on the President's ipse dixit. The fight to protect civil liberties against encroachment by government is a noble one - irrespective of the client - because the government's desire to increase its power is insatiable. So King & Spalding fights the government and National Review trusts it. Count me on the side of the King & Spalding fellows on this one.
