Senator Graham Gets the Law Wrong . . . Again

by Andrew C. McCarthy

You can tell that the lawyers who’ve come to the aid of DOJ’s al-Qaeda lawyers don’t have a coherent case. Every time they open their mouths, they embarrass themselves.

First there was the comparison of lawyers who took up the enemy’s cause to John Adams. As Cesar Conda aptly put it earlier today, that comparison is ludicrous. The United States was not at war at the time of the Boston massacre, the British soldiers Adams agreed to represent were not uninformed terrorists, and those soldiers were defendants in a criminal trial. No one is claiming that defendants in a criminal trial are not entitled to counsel or that those who defend them are not performing a constitutionally valuable function.

But the al-Qaeda terrorists are at war with the United States, and they do not have a right to counsel to challenge their status as detainees. On that score, here comes Sen. Lindsey Graham again (italics mine):

I’ve been a military lawyer for almost 30 years, I represented people as a defense attorney in the military that were charged with some pretty horrific acts, and I gave them my all[.]… This system of justice that we’re so proud of in America requires the unpopular to have an advocate and every time a defense lawyer fights to make the government do their job, that defense lawyer has made us all safer.

This is specious. “The unpopular” are not “required” to have “an advocate” if (a) ”the unpopular” include war prisoners seeking to challenge their status as enemy combatants (or unprivileged belligerents) and (b) by “advocate,” Graham means a lawyer. In fact, Senator Graham was a sponsor of the Military Commissions Act which not only endorsed a system that did not provide counsel for detainees but further (and quite properly) sought to deny those detainees access to the federal district courts.

Is Graham now saying he favors a Sixth Amendment right to counsel for all detainees seeking to challenge our military’s designation of them as enemy combatants? That would be radical and unprecedented extension of constitutional rights for our alien enemies, but that sure seems to be what he’s saying.

And every time a defense lawyer fights to make the government do their job, that defense lawyer has made us all safer? It did not used to be part of the government’s job to explain to a court why it was holding an enemy prisoner during wartime. As Justice Jackson wrote for the Supreme Court in the Eisentrager case, giving our enemies access to our courts in order to make such a demand

would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home.

Does Senator Graham now think the Supreme Court was wrong about that? Justice Jackson’s point was precisely the opposite of what Graham argues. Allowing these claims makes us less safe. On the theory that a lawyer can be expected to argue the claim more compellingly than would a terrorist untrained in the law, the lawyer making the claim makes us less safe still.

We are not talking about criminal defendants. Of course lawyers who take the cases of criminal defendants “give their all” — that’s their obligation and they are performing a constitutionally required function. But the lawyers who represented the detainees seeking to challenge their status were not representing people who were entitled to counsel and were pushing for the creation of a legal claim that the Eisentrager Court correctly reasoned would endanger the war effort and the country. If I am remembering correctly, that was Senator Graham’s position, too . . . until about five minutes ago.

Speaking of which, it seems like only yesterday that Senator Graham was railing against the al-Qaeda lawyers in a Senate debate. He didn’t seem to think they were making us safer by making the government do its job. Here he was in the debate over the Military Commissions Act, complaining about the Supreme Court’s Rasul case which, against the wisdom of Eisentrager, gave the detainees the right to file habeas corpus suits in federal court. Graham was complaining that this resulted in lawyers intruding into the collection of intelligence:

If I could add one thing on this point:  perhaps the best evidence that the current Rasul system undermines effective interrogation is that even the detainees’ lawyers are bragging about their lawsuits’ having that effect. Michael Ratner, a lawyer who has filed lawsuits on behalf of numerous enemy combatants held at Guantanamo Bay, boasted in a recent magazine interview about how he has made it harder for the military to do its job.  He particularly emphasized that the litigation interferes with interrogation of enemy combatants:

The litigation is brutal [for the United States]. We have over one hundred lawyers now from big and small firms working to represent these detainees. Every time an attorney goes down there, it makes it that much harder [for the U.S. military] to do what they’re doing. You can’t run an interrogation … with attorneys. What are they going to do now that we’re getting court orders to get more lawyers down there?

When not filing suits for the detainees — oh, I’m sorry, I mean, when not being a good defense lawyer who fights to make the government do their job — Michael Ratner of the neocommunist Center for Constitutional Rights runs around Europe trying to find some court willing to indict Bush administration officials for war crimes. Now, he’s John Adams. Who knew?