This is not that hard. The salient issue in the controversy over Justice Department attorneys who formerly represented our terrorist enemies detained at Guantanamo Bay is this: They were volunteers.
The lawyers and their lefty legions expect you to overlook that. Lawyers presume that they have an elite status in our litigious society and that their superior knowledge of the law will intimidate critics into silence. 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?”
Often, that line of defense works. In 2007, these same lawyers managed to get a Defense Department official run out of town. His hanging offense? He observed that many American corporations might prefer to find a new law firm rather than continue retaining one that used clients’ legal fees to subsidize its representation of terrorists who murder Americans. The observation, of course, was common sense. If you found out a restaurant you patronized was using the profits from serving you to provide free meals for al-Qaeda, would you keep going there, or would you find another restaurant? But when The Profession shrieked, our politically-correct-on-steroids Defense Department cried “uncle” in about a nanosecond. The al-Qaeda Bar and its cheerleaders calculate that this sorry episode will make the rest of us pipe down if we know what’s good for us.
Not all of us.
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.
The legal profession’s depiction of these lawyers as heroic servants not of the enemy but of the Constitution is unmitigated nonsense: You can’t be performing a vital constitutional function when the function is not required by the Constitution. They can repeat the lie a million times, but that won’t make it a fact. These lawyers made a conscious decision to contribute their services, usually gratis, to enemy combatants with whom the American people are at war.
This is not to say they are insincere in seeing themselves as noble — even “admirable,” as Stephen Gillers, the New York Times’s go-to expert on legal ethics, put it. He tut-tuts that criticizing these lawyers, suggesting that deep-pocketed clients should shun them, “is prejudicial to the administration of justice.” Really? Yes, he reasoned, “it’s possible that lawyers willing to undertake what has been long viewed as an admirable chore will decline to do so for fear of antagonizing important clients.”
Long been viewed as an “admirable chore” by whom? By other lawyers, that’s who. To put a finer point on it: by other left-wing lawyers. The attorneys who volunteered their services to America’s enemies do see themselves as serving a noble cause. But that is their subjective perception of the matter, and an utterly self-absorbed one. It elevates their self-congratulation for their “values” (which they monotonously insist are America’s values) over the national interest of the American people, which is to achieve victory by breaking the enemy’s will.
Down here on planet earth, there is nothing wrong with you if you don’t admire lawyers who willfully donate their skills to America-hating jihadists. There is something wrong with a legal profession that insists we not only let American lawyers take up the enemy’s cause but that we admire them for doing so.
Most Americans — at least those who are not graduates of American law schools — would say that, when we go to war, our compelling national interest is victory. If something is legally required of us (e.g., compliance with the Geneva Conventions when the enemy is entitled to its protections), we agree that we must comply. But our agreement is appropriately grudging. We’re at war with savages. They should not get one iota beyond what is minimally required. And if you, non-lawyer, decided to help the enemy, give advice to the enemy, contribute money to the enemy, or conduct trade with the enemy, you would find yourself indicted. You would become the object of your countrymen’s scorn.
Lawyers don’t see it that way. They are convinced that there is something so exceptional about their skill set that it is beyond such mundane considerations as national interests. Don’t you dare call them unpatriotic. They’re simply more important than you are. They serve a higher calling: the law. And in so doing, in exhorting the robed lawyers to endow the enemy with more due process (while the enemy plots to kill you and your family), they make you rubes better people. They drag our backward, benighted country kicking and screaming into the light.
That’s their delusion. You’re under no obligation to share it.
The Gitmo detainees, prisoners of war, are not like indigent defendants prosecuted in the criminal-justice system. The Constitution guarantees counsel to people accused of ordinary crimes. The lawyers who represent such defendants do fulfill a necessary constitutional function. The criminal-justice system, which undergirds the rule of law on which our society depends, could not function without them.
That’s not the case with the volunteer Gitmo Bar. If that enterprise were dissolved tomorrow, the rule of law would not be compromised in any way. Prisoners of war could still file habeas corpus petitions — they’d just have to do it themselves, like American prisoners do. If a military judge thought a particular legal claim was potentially meritorious but complex, the judge could appoint a military lawyer to help the detainee — just as the federal district courts, at their discretion, can appoint counsel in unusual cases to represent habeas claimants. And if detainees were charged with war crimes, they would be more than adequately represented by the military defense lawyers. The system would get along just fine — indeed, it would get along just as it was designed to get along. Sure, we’d no longer have hundreds of volunteer litigators making the military’s job far more difficult as it tried to fight the war we rely on it to fight. That would be bad for al-Qaeda, but it would be good for us.
America’s enemies are no more entitled to counsel in pursuing legal claims than, say, a pro-life group that chooses to file a lawsuit. If I went out of my way to contribute my services for free to a pro-life group, do you suppose the New York Times would have the slightest hesitation about drawing the inference that I was sympathetic to the pro-life cause? Of course not. The Gray Lady wouldn’t pretend that I was just, in the Gillers lexicon, promoting “the administration of justice.” After all, no one would have forced me to take that case. There are countless causes that a lawyer willing to donate his services can find. When you’re a volunteer, you’re doing what you want to do, not what you have to do.
As the law is currently understood, it is legal for a lawyer to volunteer his services to America’s enemies. It is absurd, however, to suggest that we have to applaud that decision. And it is equally ludicrous to suggest that we are forbidden from drawing the obvious conclusion that a lawyer who makes such a decision is predisposed to condemn the United States and to sympathize with America’s enemies on some level.
Here’s the landscape: The Obama Justice Department is staffed with many lawyers who volunteered their services to America’s enemies. Since those lawyers have been running the department, there has been a detectable shift in favor of due-process rights for terrorists, a bias in favor of civilian trials in which terrorists are vested with all the rights of American citizens, a bias against military tribunals, the extension of Miranda protections to enemy combatants, a concerted effort to publish previously classified information detailing interrogation methods and depicting the alleged abuse of detainees, efforts to subject lawyers who authorized aggressive counterterrorism policies to professional sanction, the reopening of investigations against CIA interrogators even though those cases were previously closed by apolitical law-enforcement professionals, and the continued accusation that officials responsible for designing and carrying out the Bush administration’s counterterrorism policies committed war crimes.
You may think this is a coincidence. I don’t. And I’m not going to pretend it is because some lefty lawyer screams “McCarthyism.” This isn’t demagoguery. It is cause and effect. And if it is hurting President Obama politically, that is because he deserves to be hurt for indulging it.
– National Review’s Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008).