The recent controversy over the “Gitmo Nine”—Justice Department lawyers who previously served as counsel to terrorism suspects—has unearthed a fascinating fact, one I didn’t remember, from colonial history: that John Adams served as lawyer for the British soldiers accused in the Boston Massacre. Retired Air Force colonel Morris Davis, who was for a time in charge of the military-commission prosecutions at Guantanamo, said the following: “It is absolutely outrageous for the Cheney-Grassley crowd to try to tar and feather [some of the attorneys] and insinuate they are al-Qaeda supporters. You don’t hear anyone refer to John Adams as a turncoat for representing the Brits in the Boston Massacre trial.”

There are some important distinctions to be made here. First of all, it’s one of the great strengths of our legal system that even the most highly unpopular defendants can find counsel. John Adams was not the last attorney to stand up bravely in defense of the right to a fair trial. And this principle has become so cherished by the American mind that I would be surprised if there were ever serious professional repercussions against the Gitmo lawyers. But there is also a very serious policy dispute here, about how our government should treat those accused of terrorism. If Justice Department nominees have a view on that that is highly controversial, this is a perfectly legitimate area of inquiry. Even the issue of potential conflict of interest can be raised, without its being an instance of mere guilt by association. Look at it as analogous to the case of a former lawyer for polluters being hired by the EPA: His prior work is not prima facie evidence that he wants to act as a covert agent for polluters in his new job, but it is not illegitimate or unreasonable to ask what his personal views on the issue are, and what that means for his work at the EPA.

I have a visceral distaste for the complex of attitudes that are referred to by the shorthand term “McCarthyism.” But sometimes tough, pointed political questions can be not McCarthyism, but a legitimate call for transparency.