Saturday, January 20, 2007

Gitmo lawyers defend terrorists, not the Constitution

A Statesman OpEd on January 19th went out of its way to praise lawyers who are doing pro-bono work for accused terrorists in Gitmo. Let us recall that the Supreme Court decision Hamdan v Rumsfeld was a legal appeal for Osama Bin Laden's driver and bodyguard, a man who couldn't possibly afford high-priced lawyers. Who paid for it? Taxpayers paid for military Judicial Advocates for prisoners, and in addition, US law firms are taking on cases pro bono.

A mini-tempest erupted when Charles Stimpson, deputy assistant secretary of defense for detainee affairs, dared question the role of lawyers defending Guantanamo detainees:

In his radio interview, Mr. Stimson admitted that some of the attorneys defending Guantanamo detainees might be contributing their time and talents on a pro bono basis, but that "others are receiving moneys from who knows where, and I’d be curious to have them explain that.” He also said, ...
“I think, quite honestly, when corporate C.E.O.’s see that those firms are representing the very terrorists who hit their bottom line back in 2001, those C.E.O.’s are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.”
It didn't play out like he expected. Undersecretary Stimson, who has explained the detainee policies clarified this past September, has called the Guantanamo Bay detention facility important and relevant, found himself under a brutal backlash of criticism. These statements were found outrageous by lawyers, Democrats in Congress, by liberal commentators, and the Statesman. Enough so that Stimson came back with an apology (that didn't satisfy the legal eagles).

The Statesman associated raising questions about the pro bono lawyers with "Attacking the constitutional right to counsel, a cornerstone of the rule of law." Ahem, no such right is being questioned. What was being questioned was the consequences and motives of such representation.

It's one thing to properly point out that defendants should have rights in court and it is good for lawyers to represent them. Yet the questioning of Bush administration policies regarding detainess has evolved into a dubious pursuit of legalistic attacks on sensible policies for holding enemies captured in wartime. Claims that terrorists caught on foreign battlefields should have the same legal rights as U.S. citizens in civilian courts is wrong-headed, but we often here arguments that wrongly compare these non-citizens caught as prisoners of war with citizens' rights in civilian courtrooms.

The boundary lines and the right balance between maintaining fundamental rights and pursuing a strategy to defeat terrorists has been an intense political debate. The hyper-legalistic view of the Global War on Terrorism leads to the reactive, pussilanimous policies that led to 9/11 in the first place. Whatever the correct boundaries, if it is legitimate to question the Bush administration policies on this matter, it is certainly at least as legitimate to question those who are acting as protectors for the accused terrorists held in Guantanamo.

The Statesman not only wants to leave these lawyers beyond questioning, they attempt to turn the legal advocates for terrorists into heros for the Constitution. They note that Austin lawyer Dick Grigg help free an inmate captured in Afghanistan and held for three years. They fail to note that many of the detainees freed have gone back to rejoin the terrorist groups and fight us once again, both in Afghanistan and in Iraq. These are not innocents.

The mind boggles at the thought that the 'good guys' are not the soldiers and the generals who risked life and limb to capture these terrorists on a battlefield, but lawyers who in the safety and comfort of a courtroom plead for clemency for those who apparently want to destroy America. Yes, they have the right to defend terrorists, and terrorists, even those captured by our military on a battlefield have rights to defend; but murders, mobsters and muggers get those rights too, and we don't call mob lawyers heroes for doing the dirty job of defending terrible people. The lawyers themselves are not doing any favors for us, for the legal system, the Constitution, or for our freedoms.

Our rights are protected with the blood of soldiers, and if the lawyers really wanted to defend that, they'd enlist. This kind of legal work is about as good for America as the wonderful work of that legal team that got OJ away with murder.

Despite the high-minded bloviation from the Statesman about how questioning these lawyers is an attack on legal representation rights (um, no it isn't), the fact remains: These lawyers are aiding and defending accused terrorists, not the Constitution.

PS. You will note that whenever a Bush administration program is attacked, you will rarely see the word 'terrorist'. Such a word is forbidden in the post-post-9/11 world of the new-old Democrats and the liberal lamestream media. When a terrorist blows up a building, the attack is treated like a force of nature, or if it happens in Iraq, a cause to bug out of Iraq. When that same terrorist is captured, he becomes a "detainee". Pat Buchanan calls these folks "prisoners of war". For the most part, these are individuals caught via military operations, so it fits. The Bush Administration and DoD does it to precisely draw the correct point that these prisoners, while caught in warfare, are not legally entitled to Geneva Convention protections, although USA has granted them humane treatment and those protections anyway as part of our Uniform Code and recent Federal law.

1 comment:

Patrick McGuinness said...

Internal comment: 936 words.
- There are 2 arguments here, one about the actual correct policy wrt the Gitmo terrorists, 2nd about how we feel about lawyers who defend these terrorists.
If some want to make a "cause celebre" over defending accused terrorists, it is a foolish one, but terrorists can and will get the legal representation they are entitled to in the courtroom/tribunal. So the latter is in the end a side-issue.

The main issue are the assumptions about what that level of rights is to be and what the overall detention policy and legal due process should be. The policies and the laws passed in the Congress in the wake of the Hamdi decision strike the right balance. The main error of Bush admin critics has been the erroneous equivalency drawn between the situation of terrorists caught in war zones and US citizens in civilian US court criminal proceedings. These are 2 very different situations and the legal standards and due process rules can and should be different.