John A. Farrell

Why Cheney, Kristol Are Wrong About DOJ Al Qaeda Lawyers

March 10, 2010 RSS Feed Print

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By John Aloysius Farrell, Thomas Jefferson Street blog

More than a little on Thomas Jefferson Street have I poked conservatives for abandoning their libertarian principles when their espoused values clashed with partisan gain. It's fair, then, to praise conservatives like Ken Starr, Sen. Lindsey Graham, and others for defending the Al Qaeda 7 from attack by Liz Cheney, Bill Kristol, and other right-wing opportunists.

The issue is not whether enemy combatants are entitled to the same rights under our Constitution as American citizens. They are not--though our conservative Supreme Court is, slowly and deliberately, awarding foreign detainees considerable protections. The question is whether an American lawyer who represents an unpopular cause should be the target of a witch hunt. And that is where your rights, and mine, get whittled away by folks like Cheney and Kristol, in their drive for personal influence and attention, or partisan profit.

As someone writing a biography of Clarence Darrow, I know a little about lawyers who represent unpopular clients and causes. In his long career during the Gilded Age and the Jazz Age, Darrow represented anarchists, communists, homosexual killers, war resisters, dozens of murderers, terrorist bombers, atheists, a lynch mob, a Ku Klux Klan leader, and African-Americans who raped or killed white women.

Darrow was "the greatest criminal lawyer in America today," a prosecutor at the Scopes Monkey Trial acknowledged in 1925. But, "Great God! The good that a man of his ability could have done if he had aligned himself with the forces of right, instead of aligning himself with that which strikes its poisonous fangs at the bosom of Christianity!"

Darrow acted as he did because of his profound sense of empathy for the underdog, and his deep libertarian convictions. He was a Jeffersonian Democrat, trying to maintain the principles of individual liberty in the industrial age, and his target was Big Government, as well as Big Business.

That's what led a group of conservative U.S. senators to urge Franklin D. Roosevelt to appoint Darrow to head an investigation of the New Deal agency--the National Recovery Administration--that the Democrats had created to manage the American economy.

Roosevelt thought that Darrow, a liberal who had endorsed and supported the president's candidacy, would protect the agency. Instead, the president was stunned and angered when the Darrow commission issued a scathing series of reports on how the National Recovery Administration favored big corporations at the expense of small businesses and consumers.

That is the kind of intellectual consistency and libertarian principle now being shown by Starr, Graham, and many other conservative jurists.

Lawyers are easy to malign--until you need one. When the State, with its awesome powers, focuses its attention to you--well, that is the moment when you don't want your attorney looking over his or her shoulder and calculating the political harassment to be encountered if he or she agrees to represent you.

And that is why--by the way--I used this space to defend Bush administration lawyers from a liberal witch hunt that the Obama administration, wisely, has brought to an end.