I must say that I'm surprised. I hadn't thought I'd be capable of greater revulsion for right-wing political tactics after the Kenyan birth rumors, after the stonewall on health care reform, after populist demagoguery on the bank bailout that was necessitated—and partially enacted—by a Republican administration. But the right-wingers have exceeded my wildest expectations.
The issue is Attorney General Eric Holder's appointment to the Justice Department of nine lawyers who had done pro bono work for individuals incarcerated at Guantanamo Bay. Now, I fully expect the likes of Bill O'Reilly and Sean Hannity and Michelle Malkin to be all over this, and the know-nothing constituency of Fox News and the New York Post to cheer them on. It is more than disheartening, however, to see others who really should know better joining in the fun.
The dreary and predictable narrative is that these lawyers have given sympathy and support to the enemy, showing where their true values lie: with the terrorists. After all, as Andrew McCarthy, former prosecutor of the terrorist Sheikh Abdel Rahman and a National Review contributor points out, "they volunteered" to help terrorists! They must be traitors.
As Fox News' own Dr. Evil, Charles Krauthammer, told Bill O'Reilly,
These people chose to do for free, defense work for people in Guantanamo, for people like Khalid Sheikh Mohammed, who not only was the architect of 9/11, but he boasts of slitting the threat of Daniel Pearl. So he's choosing, at least nine people who chose that this is the work they are going to do on the side. That tells you there is some ideological affinity here. (The O'Reilly Factor, March 2, 2010.)
The part about Khalid Sheikh Mohammed murdering Daniel Pearl is considered by many actual terrorism experts to be demonstrably impossible, a false confession extracted under torture; this has never stopped Krauthammer from repeating it. But let that go. "Ideological affinity"? Yes, of course, Obama and Holder and their friends are crypto-Muslim extremists dedicated to waging jihad. Keep America Safe, the organization founded by Dick's daughter Liz Cheney and conservative commentator and activist William Kristol, asks "Whose values do they share?"
Maybe the values of Founding Father John Adams. I am far from the first to note in this context that Adams defended British soldiers accused of gunning down rowdy American colonials in the "Boston Massacre" of 1770. Adams, a leading Patriot with political ambitions, risked his career and reputation to defend the enemy. Why did he do this?
He did it because he understood—even before there was a constitution—that without the rule of law, without fair trials even for the despised, there is nothing else that can be called civilization, nothing else that civilized people can live, fight, or die for. This is why the Guantanamo lawyers volunteered—just as John Adams volunteered—to defend those accused of terrorism.
It's another principle of American justice, by the way, that the accused are innocent until proven guilty.
Liz Cheney's organization, and people like Andrew McCarthy and Senator Lindsay Graham, try to tell us that "enemy combatants" (in effect, prisoners of war) are not entitled to trials and historically have never received them. But this is completely disingenuous. Captured soldiers of the army of an enemy state can be held for the duration of hostilities, but—unless they have committed war crimes—they are not put on trial because it is not a crime to serve in the army of a legitimate state, even when the capturing country is at war with that state. By contrast, terrorists by definition do not serve any legitimate state in any legitimate way. It is precisely for this reason that they are criminals; and criminals, when under US jurisdiction, get trials. It really is as simple as that. There may be some very particular cases (for example, when the accused attacked purely military targets, such as the USS Cole) when military tribunals are appropriate; but we must try them, no matter the risks involved, and guarantee their rights to due process. As in all other criminal trials, we do this not for the sake of the criminals, but for the sake of the rest of us: for the sake of the society we want to live in, the kind of America we want to be. It is as necessary to do this as it is necessary to bomb al-Qaeda encampments in Pakistan. These actions are two sides of the same coin, two sides of our defense of democracy.
Under our Constitution, even suspected terrorists are entitled to a defense, and no matter how much the Bush administration and its friends tried to obfuscate that idea with pure inventions like "unlawful combatants" and "unitary executive," this remains the case. The people who volunteered to make sure that the Constitution was upheld are true patriots who were supporting American institutions, culture and law, and ultimately our freedoms and way of life. In other words: they were defending those things that al-Qaeda despises, and would like to destroy.
The "al-Qaeda 9," as National Review wants to call them, are very directly engaged in America's defense. By forcing the courts to recognize (not to create) the legal rights of Guantanamo detainees in cases like Hamdan v. Rumsfeld and Boumedine v. Bush, these brave lawyers—and the military lawyers and Judge Advocates General who worked with them and supported them—were striking blows against terrorism. What they were doing was actually profoundly conservative, in the best sense of the word; or, to put it another way, in the best liberal tradition, in an older sense of that word.
What, then, of people who would take the opposite view—those who would deny suspected terrorists any rights under American jurisdiction? Whose side are they really on, whether they know it or not?
Andrew McCarthy so far misunderstands the meaning of national security as to write:
During the Bush years, national security was inarguably the nation's top priority and Justice Department lawyers were fully engaged in the war on terror. By contrast, key Obama administration lawyers spent those years at law firms and institutions that enthusiastically provided pro bono legal representation and issue-advocacy for America's enemies.
The Bush administration, in breaking the law (real American law, not the chimera of "international law") by engaging in such travesties as torture, "extreme rendition," and warrantless wiretaps, not only endangered our security by making the terrorists' case about America for them, thus greatly helping terrorist recruitment. They damaged our institutions and the rule of law itself. Bush and his accomplices (I've listed many of them here) helped the terrorists accomplish many of their goals. His model of national security, in which a powerful executive can take any measures he likes in order to catch terrorists, sacrifices liberty for security, and subjects us to the arbitrary rule of those who believe the institutions of liberal democracy are a sign of weakness, not of strength. Those cowards who justify such measures because they fear for their own miserable lives (at this point it might not be inappropriate to mention that Dick Cheney, who supported the Vietnam war, took four deferments from military duty, and ultimately never served) have forgotten that the president does not take an oath to keep the American people safe at any cost. He takes an oath to uphold the Constitution. I've quoted Benjamin Franklin before and I can do it until the cows come home: "They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety."
Let's take the right-wing argument to its logical conclusion. As I've also written elsewhere: We could undoubtedly save American lives if we repealed or ignored the Fourth Amendment's protections against illegal search and seizure. Let's allow the police to search any person or any home or office on mere suspicion, or for no reason at all. Let's also repeal or ignore the Sixth Amendment's guarantees of a speedy trial and the right to confront witnesses, the Third Amendment's right to a jury trial, and the Fifth Amendment's right not to self-incriminate. Let's stop being soft on terror! Give the police and the prosecutor the tools they need to catch terrorists!
But we can't fight like the terrorists. We can't do it because, to repeat the cliché: if we do, the terrorists win. Nothing left worth fighting for.
Who the hell is Dick Cheney, one of the policymakers behind Abu Ghraib—and no, it wasn't just a few rogue soldiers, it was policy—to lecture us on security, as he so loves to do? What about Krauthammer, an MD who has supported the use of torture for national security purposes? What could he possibly tell us of American values? As for McCarthy, the irony of the fact that he himself successfully prosecuted terrorists in civilian courts, where they had full legal protections (thus proving that the rule of law actually does work) is completely lost on him. No, better to do everything in the dark, off the books, with no public oversight and no democratic process. Give the president kingly powers. That's how you win the war on terror!
Almost as infuriating as the anti-American diatribes of people like McCarthy are the lame defenses of those who represented Guantanamo detainees by the New York Times and the Justice Department itself. Just say straight out that these lawyers were defending American democratic values, please! I am completely mystified as to why Holder and his department continue to resist Senator Charles Grassley's deeply sinister crusade to get the department to reveal the names of these lawyers. Why play Grassley's game? Why keep this perfectly innocent—indeed, honorable!—information a secret in the first place? Holder should have come out months ago and said as forcefully as possible, "The lawyers who donated their time and talents to ensuring that even the most despised detainees subject to American law have the legal rights that they are entitled to are heroes who fully understand the moral, philosophical, and legal underpinnings of American freedoms. I am proud to work with them, and I believe that it is people such as they who, along with our brave and dedicated military forces, provide the strongest guarantees of our eventual victory in the war on terror. I invite you to consider the implications of the solutions offered by those who believe that security is more important than liberty. Who believe, indeed, that true security is possible without liberty and the rule of law. That is not the American way, and it is not what I believe this department should stand for. Thank you very much."