By John Aloysius Farrell, Thomas Jefferson Street blog
Some right-wing hacks are off on another pogrom, trying to restrict your liberty in the name of order. It never ceases to amaze me that folks who claim to venerate the Constitution never seem to read it. Now they want to limit your right to an attorney, by harassing lawyers who represent unpopular clients.
There are reasons why the founding fathers, after insisting on Freedom of Speech and Freedom of Religion and the Right to Bear Arms in the first two amendments in the Bill of Rights, strove to protect the rights of citizens arrested and put on trial by the government in amendments number 4, 5, 6, 7, and 8.
The founders had just fought a long and bloody revolution against King George, and knew well how tyrants like the British sovereign perpetuated power with arbitrary arrests, imprisonments, and executions. And so, along with guarantees like the right to due process, and protection from unreasonable searches and cruel and unusual punishment, the first patriots also included, in the Sixth Amendment, the right of an American to a speedy trial, by an impartial jury, with "the Assistance of Counsel for his defense."
"In our adversary system of criminal justice, any person hauled into court...cannot be assured a fair trial unless counsel is provided to him. This seems to us to be an obvious truth," the Supreme Court ruled, in the landmark case of Gideon v. Wainwright. "The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours."
There is a debate in legal circles, these days, as to just how far legal safeguards like the right to counsel should be extended to people seized by the U.S. government who are not American citizens--especially terrorist detainees.
Let's stipulate that during war the rules are different. And that we didn't start this war, the bad guys did. Every day, in the skies above Afghanistan and Pakistan, the U.S. military has aerial drones armed with air-to-ground missiles searching for al Qaeda and Taliban leaders. When we spot them, we kill them. We don't worry about due process. I don't doubt for a moment that, should Osama bin Laden turn up in the crosshairs, we will blow him to little bloody bits. And I, and everyone in America, will rejoice.
Indeed, the Obama administration's eagerness to engage in this campaign of summary execution, to an extent far exceeding that of the Bush administration, has pleased--to the point of astonishment--conservative hawks.
"There's a lot of kerfuffle in the United States about what happens to captured terrorists when they enter the American legal system. The Obama administration, to some extent, is obviating that problem by assassinating them more frequently than the Bush administration was," says Robert Kagan, one of the architects of the U.S. policy to take the war against terror to its roots.
But war, especially a war on terror, is messy. Some innocent folks get rounded up with terrorists, especially in faraway countries where we don't know the language or the facts on the ground, and a "friendly" warlord might drop a dime on some rival he has been wanting to get rid of for years--and what better way than to tell the Americans that the rival is an evil jihadist?
During the Bush years, the U.S. military, recognizing this problem--and honoring the spirit of the Sixth Amendment--ordered military lawyers to represent detainees. Some of these military lawyers asked for help from civilian legal specialists. And some civilian lawyers, with a libertarian bent, volunteered their time.
Well, no good deed goes unpunished. A few right-wing opportunists, like William Kristol and Elizabeth Cheney, have launched a crude and divisive campaign labeling the U.S. Department of Justice the "Department of Jihad" because a handful of those lawyers who advised the detainees went on to work for the attorney general.
I've been blogging for five or six years, and writing a newspaper column for several years before that. There are a couple of analogies I have always stayed away from: Nazism and McCarthyism. These were special evils, and it's wrong and lazy to compare those with whom we differ to Adolf Hitler and Joe McCarthy, unless they really deserve it, and few do. But I will leave it to you to determine whether the Kristol-Cheney agitprop, given in a conspiratorial tone, compares to that of the McCarthy era: "So who did President Obama's Attorney General Eric Holder hire? Attorneys who represented or advocated for terrorist detainees. Who are these government officials? ... What values do they share? Tell Eric Holder [that] Americans have a right to know the identities of the Al Qaeda 7."
The name of the Kristol-Cheney group is "Keep America Safe." Of course, they are doing nothing of the kind by undermining American unity for partisan and personal gain.
Good folks are rallying to condemn the slurs. Kagan has an op-ed piece in this morning's Washington Post (an excerpt from a longer piece in Foreign Policy magazine), alerting his fellow conservatives (and the rest of us) that the Obama administration's willingness to listen and accept ideas from across the ideological divide when conducting foreign policy is a blessed exception to the partisan rancor that otherwise afflicts the capital.
"At a time when America's ability to lead is questioned at home and abroad," Kagan writes, "bipartisan unity on these major issues can strengthen America in its dealing with friends and with adversaries. Despite what our declinists believe, and thanks in part to the election of Obama, more and more people around the world are looking to the United States to play that leadership role again."
Elsewhere in the Post, former Solicitor General Walter Dellinger offers a glimpse of one of the "Al Qaeda 7," a lawyer named Karl Thompson in the buttoned-down legal firm of O'Melveny & Myers, who was asked for specialized expertise by a U.S. Navy officer defending a 15-year-old detainee. Thompson helped the Pentagon legal team with federal court procedure. Sometime later, he joined the Justice Department. For this act of good faith, financial sacrifice, legal ethics, and patriotism, Thompson now has to spend the rest of his life with the tawdry asterisk furnished by Kristol and Cheney and their bunch. Wear it as a badge of honor, Mr. Thompson.
Dellinger also quotes former Solicitor General Ted Olson, a leading conservative and libertarian jurist who has previously responded to attacks upon lawyers who represent detainees. "The ethos of the bar is built on the idea that lawyers will represent the unpopular, so that everyone has access to justice. Despite the horrible Sept. 11, 2001 attacks, this is still proudly held as a basic tenet of our profession," Olson wrote.
Olson, like Thompson, is a patriot. And we should pay special attention to what he says. On September 11, his wife Barbara was a passenger on American Airlines Flight 77. She died with the other passengers when al Qaeda's thugs flew it into the Pentagon.
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