The Volunteer Attorneys


The battle over the attorneys continues.  First the Bush administration fired nine Justice Department attorneys in December, 2006 occasioning a Congressional investigation of Attorney-General Alberto Gonzales’ conduct and resulting, a year later, in his resignation.  Then the Obama administration launched an investigation into the conduct of Legal Counsel to the President’s office, helmed by John Yoo and Jay Bybee to determine the extent of their liability for giving legal sanction to the CIA’s enhanced interrogation program.  Unlike Gonzales, Yoo and Bybee emerged innocent of all charges, even if they were badly singed by the process. 

Now its the Republicans’ turn.  In his book Courting Disaster, former  Department of Defense speech writer Marc Thiessen devoted an extensive chapter to the way in which several Obama appointees to the Justice Department had voluntarily defended Guantanomo Bay detainees.  U.S. justice calls for every man to have his innocence defended in court by legal counsel and indeed our courts are mandated to appoint  legal counsel where the accused has not elected to defend himself .    But should those who have volunteered to represent the enemies of the state be serving in our own Department of Justice? 

That is the volatile question posed by Keep America Safe, an organization co-founded by Liz Cheney, the daughter of former Vice President Dick Cheney.  In an advertisement distributed through YouTube, Cheney demands that  Attorney-General Eric Holder identify the seven Department of Justice attorneys who once served as voluntary counsel for the Guantanomo Bay al Qaeda inmates.  Should Holder be forced to disclose those names and why is it important? 

The Wall Street Journal Weekend Journal posed that very question two attorneys who should know something about the issue.  Steve Jones was the Oklahoma City based attorney who defended Timothy McVeigh after his arrest in 1996 on charges of planning the bombing of the Alfred P. Murrah Federal building in Oklahoma City.  Andrew C. Mc Carthy was the lead federal prosecutor of the plotters of the World Trade Center bombing in New York in 1993. 

Jones leads off with a case for attorneys who defend unpopular clients.  He  states that it has long been the position of American system of justice to offer a defense of criminals who our system labels innocent until proven guilty.  John Adams defended British soldiers accused of shooting several Boston’s citizens in 1770 and suffered public opprobrium for doing so.  But that did not stop him from becoming our second president. 

As an attorney Abraham Lincoln also took up unpopular causes, as did many of our distinguished federal judges.  Jones concludes that “neither history nor experience demonstrates that the points being made by Ms. Cheney and her allies have any merit.  They merely represent “forensic vigilantism,” and “a political lynch mob mentality.” 

Not so, says McCarthy.   It is not an American tradition for U.S. attorneys to volunteer to represent enemies of the state, but rather a modern anomaly.  The prisoners at Guantanomo Bay, were not U.S. citizens who had been deprived of their right to habeas corpus but unprivileged, alien enemy combatants.   U.S. law has also not traditionally extended the right of legal counsel in habeas corpus cases, even to U.S. citizens – and until 2004, enemy prisoners were not entitled to challenge their detention at all.  Moreover, he defends the Keep America Safe advertisement in its insistence that when attorney volunteer to participate in cases, where there is no requirement of representation of legal counsel, that choice likely reflects their policy preferences.  

On balance, Jones’ case comes out as unconvincing.   It fails to answer the question of how the American public should regard those who voluntarily (rather than as draftees, as he was) defend non-citizen enemies of the state and whether it has a right to have the political orientation and policy biases exposed through a demonstration of their choices. 

There is almost no question that at a time of grave national security risk (or war, as Mc Carthy calls it), the country’s legal team should be composed of individuals, who, at the very least, place the country’s security first and individual human rights in only a secondary position.  For as the John Yoo episode well demonstrated, we rely upon these attorneys for the legal justification of our national security policy.  If their position is that the individual rights of terrorists trumps the need for the American public to be protected, then we should demand their resignation. 

In the end, this debate exemplifies the struggle between the exigencies of national defense on the one hand and the rights of individuals to privacy and protection on the other.  In another sense it also illustrates the battle between those who reject American particularism, which requires that American law apply to just Americans  – and those who support the notion that American protections and privileges should have universal application.    

Does the decision of the so called ‘al- Qaeda Seven’ to defend non-citizen enemy combatants make them, ipso facto, supporters of al Qaeda’s ideology?  Of course not.  But equally it does not makes them heroes of conscience whom we should reward with employment in an important national office tasked with responsibility for our safety and well being.

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