Another Weak Defense of Keep America Safe

Over at True/Slant, I have explained why Andrew McCarthy’s latest op-ed in USA Today, titled “No right to Counsel: Of all the causes to volunteer for, these lawyers chose our enemies,” is unpersuasive and wrongheaded. Here I want to address Jonah Goldberg, who says he doesn’t even understand why the Keep America Safe ad is controversial:

…was the Keep America Safe ad too strident? Maybe. Reasonable people can differ on that. But on the general question of whether it’s permissible in a democratic society to criticize lawyers for the kinds of clients they take, I’m baffled as to how this suddenly became a serious debate. And on the question of whether it is legitimate to question the past clients of lawyers working in the Justice Department, all I can say is “huh?”

Mr. Goldberg’s argument is misleading — he makes it appear as though at worst, the Keep America Safe ad was a bit too strident in asserting that lawyers can be criticized for the kinds of clients they take, when in fact the ad’s most objectionable feature isn’t criticizing lawyers for representing Gitmo Bay detainees, it is implying that those lawyers are in league with our terrorist enemies. That aspect of the ad is rather heavy handed: there’s the foreboding music, the shadowy lawyer figures, the decision to label them the “Al Qaeda seven” (despite the fact that not all of them represented Al Qaeda members), and the implication that these lawyers share the values of Al Qaeda rather than their fellow citizens. Were Michael Moore to produce a commercial criticizing John Yoo for his torture memos, calling him “The Inquisitor” for abetting the use of barbaric torture methods, and asking whether he shared the values of terrorists or Americans, does anyone think that Mr. Goldberg would see the commercial and say merely that reasonable people can agree as to whether it is too strident?

Mr. Goldberg is of course correct that in all cases, the Justice Department should respond in a transparent fashion to inquiries about the past clients of its attorneys, even when the inquiries are from modern day McCarthyites, and it is obviously “permissible” in a democratic society to criticize lawyers for the kinds of clients they take.

It is also permissible in a democratic society to accuse people of being Communists, or to call them racial epithets, or to do any number of things that are unseemly and wrong. I am sure Mr. Goldberg can find a convenient liberal blogger who makes the weakest of all arguments against Keep America Safe. Everyone on his side of this debate seems to have a special talent for responding only to the weakest criticisms offered against the group. What he cannot rebut is the stronger argument against Keep America Safe: that in this particular case, it is wrongheaded for the group to criticize lawyers of Gitmo detainees for taking those specific clients, and that it is especially wrong to do so in an ad calculated to make it appear as though they share the values of al Qaeda terrorists.

Mr. Goldberg writes:

When did lawyers become this infallible priesthood of do-gooders? As a general rule, mob lawyers are somewhat less admirable than, say, first-amendment lawyers. Personal-injury lawyers understandably get less respect than civil-rights lawyers. I spent much of the 1990s listening to liberals like James Carville demonize dirty, filthy, “tobacco lawyers.” Of course, honorable lawyers sometimes pick unsavory or unpopular clients on principle. I think reasonable people can debate the merits of those decisions. I think it ludicrous, however, to simply have a flat rule that any lawyer who represents any unpopular villain is heroic — and beyond criticism — for doing so. Just as I think it would be ludicrous to have a blanket policy of condemning as villainous any lawyer who represents any criminal. (And let us put aside the fundamental argument about whether al-Qaeda detainees are “criminals” in the conventional sense).

Reading Mr. Goldberg, you’d almost think Keep America Safe’s critics are asserting that “lawyers are an infallible priesthood of do-gooders.” Actually we are objecting to ads that suggest American lawyers are on Al Qaeda’s side in the War on Terror instead of our side.

Invoking mob lawyers and tobacco lawyers, Mr. Goldberg neglects to explore why they are unpopular: the former are probably most familiar to the American publica through the Godfather and other mob movies, where the consiglieries help plan crimes before they occur, benefit financially from the criminal acts they’re paid to obscure, and constantly lie on behalf of their clients. Tobacco lawyers are vilified because so many of them helped hide evidence that the product they sell is harmful for one’s health, as dramatized in The Insider. It wasn’t representing clients that sell unhealthy products that gave them their bad rap so much as their illegal complicity with those clients and the premeditated lies told on the client’s behalf.

In other words, the comparison hardly does valid rhetorical work in an argument against lawyers truthfully representing pro-bono for clients who are either innocent or committed their crimes/hostile acts long before the attorney-client association began. Mr. Goldberg may think that a blanket policy against condemning any lawyers as villainous in wrongheaded, but that assertion says nothing about whether Keep America Safe wronged these particular lawyers. He never directly addresses that question, instead choosing to take on only those aspects of this controversy that allow him to make plausible if unpersuasvive arguments on behalf of Keep America Safe.

Mr. Goldberg writes:

Then there’s the twofold issue of these lawyers working for DOJ and the administration keeping their identities a secret. How is this not a legitimate issue? I don’t get it. As USA Today concedes, lawyers who defended al-Qaeda suspects need to recuse themselves from these matters. Everyone concedes that there are conflict of interest issues here. Are we to suddenly believe that Congress has no right to inquire about such things? Tell that to environmentalists who want lawyers for “polluters” kept out of the EPA. Seriously, has no one listened to Henry Waxman for the last 30 years? Do Obama’s countless promises to be “transparent” have no validity when it comes to these lawyers? Why on earth would that be the case?
And yet, to listen to Holder’s defenders, the people who ask these questions are being denounced as demagogues and (Joe) McCarthyites. This is coming from the same crowd that wanted to criminally prosecute Bush’s lawyers? Spare me.

It’s true, there should be transparency with regard to all lawyers in the Justice Department, and there wouldn’t be such an uproar about this if Keep America Safe and its allies were merely calling for transparency. Of course, they’re going much father, asserting that there is something objectionable about the behavior of the lawyers in question. It is because they call these lawyers “the Al Qaeda 7” in a commercial that darkly insinuates they share the values of our enemies that Keep America Safe is called McCarthyite.

It is apparently lost on Mr. Goldberg that the people who want to prosecute Bush Administration lawyers believe that those attorneys broke the law, and present a rather compelling case for it — whereas no one contends that the lawyers of Gitmo detainees broke the law. Nor have I seen any commercials questioning whether Bush Administration lawyers share the values of our enemies. Overall, Mr. Goldberg’s arguments are unpersuasive, and the issues he offers no arguments about overlap almost perfectly with the least defensible aspects of Keep America Safe’s odious behavior.