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1. Conor, why bother? Nothing was lost on Goldberg—he’s a polemicist and nothing more. I don’t think he’s a stupid person, it’s just that he doesn’t try to make cogent arguments—only ones that have surface appeal to people who agree with him. I don’t understand why people give him the respect of a takedown.

   — Steven Donegal · Mar 12, 11:32 PM · #

2. I have to confess I don’t understand the argument that you’re making. Let us take as a given that it is ethical and moral for these lawyers to have represented terrorist clients. The question is quite different: should they then be given political appointments at the public agency that may have to prosecute terrorists?

   The fact that the Administration has not been forthcoming with the facts in the matter suggests that they understand the political dangers of such appointments. Similarly, the fact that no Bush Justice officials are ever going to be prosecuted for arguing that detainees could be treated harshly reflects political reality, irrespective of legal ethics.

   There is no inconsistency in saying that, regardless of whether the detainees were entitled to counsel as a matter of law, the American people are entitled to know which of their now-employees defended the terrorists and to an explanation of why so many of these lawyers were then hired by Justice. The number of lawyers involved, the role of the Attorney General himself, and the way information about their backgrounds has been handled can’t help but raise questions as to whether there is a culture among the political appointees at Justice that the electorate would find objectionable—not pro-terrorist, per se, but what we might call anti-anti-terrorist. :)

   — OJ · Mar 13, 12:08 AM · #

3. OJ, perhaps if you didn’t conflate “terrorist clients” with Gitmo detainees, things would be a bit clearer for you.

   — Erik Siegrist · Mar 13, 01:35 AM · #

4. Mr. Siegrist:

   I don’t believe anyone is making the argument that the lawyers only defended innocents. Isn’t the argument that even the most despicable deserve representation?

   — oj · Mar 13, 02:59 AM · #

5. Actually, OJ, McCarthy is essentially arguing that lawyers should only defend innocents, or at the very least, that the idea that everyone deserves representation, no matter how despicable, is a deception.

   — Mark in Houston · Mar 13, 04:12 AM · #

6. Take the whole pool of qualified lawyers in the United States. The number who (no doubt quite properly) provide defense services for terrorists is a vanishingly small proportion of the total pool. Yet they are a vastly larger proportion of the lawyers that the Obama administration selects for its staff. Why is that? In short, the real issue is not with the lawyers but with the administration.

   — nb · Mar 13, 12:48 PM · #

7. It is a separate argument whether detainees taken in war are entitled to representation.

   The question at hand is ought those who choose to represent them serve at Justice and aren’t voters entitled to know that they do so?

   — oj · Mar 13, 01:24 PM · #

8. I apologize for bringing irrelevancies into this discussion. US federal law, in the form of the Geneva Convention, requires the safeguards in a normal court for anyone brought before a tribunal or detained as an illegal combatant, but that doesn’t really have anything to do with this discussion, and I should have figured that out earlier. This has to do with a narrative, in which honest, earnest Americans, with their innate understanding of right and wrong, grasp intuitively that the jihad, either the actual Salafist Jihad or the “crimson jihad”, represents pure evil and those attached to it deserve the most immediate condign punishment. The rule of law? Don’t make me laugh. When does Buffy read vampires their rights? Did Captain Sheridan worry about the “rights” of Shadows before he triggered a thermonuclear overload on their planet? Did Commander Adama stay up nights worrying about Cylon rights? But these smarmy expletive deleted lawyers who think they know better than us and our heroes, well, they’ve got another think coming. In the Mad magazine satire of Dirty Harry lo these many years ago, the writers have a lawyer telling Harry that protections of the rights of suspects “make America great.” Mad has Harry snarl in response: “Well. me and the audience just decided we like the laws that made Nazi Germany great.”

   And there we have the problem, because in the long run, almost all the evidence indicates that Americans will do best by protecting the noble heritage of freedom under law. By acting as though the purpose of the constitutional protections that my country and yours share, to protect a long heritage of freedom from the passions and panics of the moment, really mattered; that way, you can tell bin Laden that while you sympathize that he does not have a heritage of freedom protected by the rule of law, he will certainly never succeed in taking away yours.

   — John Spragge · Mar 13, 03:31 PM · #

9. Mr. Spragge:

   Exactly. Such lawyers are free to defend the detainees but ought to understand that it will compromise them enough that they may then be unfit for political jobs. If the novel principles involved—jury trials for enemy combatants—really are that important to them then they should be more than willing to forego subsequent employment at Justice.

   — oj · Mar 13, 04:14 PM · #

10. oj,

    Where have you explained why attorneys who represented Gitmo captives should “understand” that they are “unfit” to serve in the Justice Dept?

    From what I’ve read, you have done nothing of the sort. You superficially suggest a conflict of interest, without bothering to explore or clarify this assumption. Further, you stop short of claiming the lawyers are sympathetic to Jihad, as does Keep American Cowed and Frightened, but you still fret that they are “anti-anti-terrorist.” (I know, you followed this phrase with a smiling emoticon, but since it wasn’t winking at me, I think it’s fair to say you weren’t being entirely sarcastic.)

    The current DOJ would likely prefer to view the attorneys in question as anti-anti-process. It’s far more likely/rational— if less inflammatory— to assume that these attorneys saw fundamental legal protections in jeopardy, so they stepped into the breach. Not in an effort to stymie the fight against terrorism, but to fortify the very legal traditions that allegedly dignify our system. To question their service here as a potential disqualification to practice their profession, elsewhere, is a pretty serious assertion.

    Yet you have no information about how any of these attorneys abused their positions simply to undermine anti-terrorism efforts. You have not a shred of evidence that any of them were beholden to or paid by al queda interests, as they would be were they the mob lawyers of Thiessen’s lame analogy.

    You just have this vague, unsupported belief— much like the NR essays about American exceptionalism in several of Friedersdorf’s other recent posts— that the Obama administration seeks to forcibly humble, disarm and emasculate the country it purports to serve. You don’t mind that Bush’s DOJ also hired lawyers that previously worked on detainee cases. This issue is merely political for you.

    It’s a relief to see that the Cheneys’ position— and that of those who support their campaign— continues to be marginalized not only among the electorate as a whole but even among those within the Republican party. As Fred Kaplan recently observed in Slate, Cheney was losing his arguments about detainee treatment within his own administration by its final three years. His team may now be boiling down to a dedicated, fearful few, but it continues to lose.

    — turnbuckle · Mar 13, 07:04 PM · #

11. OJ – You make some good points. These are legitimate issues for political debate. The appointment of these people indicates that the sentiments driving Holder’s DOJ are closer to the “solicitude” end of the “solicitude”-“bare-knuckles” legal continuum when it comes to Gitmo and terrorism suspects. If Holder doesn’t realize such appointments represent a political statement, he should (or his boss should fire him). And by all means hammer him for the secrecy. But there are two objections the critics are making, one formal, one substantive, that point to some real creepiness/scariness/myopia in the KAS gestalt. The substantive one is that little “Whose Values do they Share” graphic that runs in front of a fist-raised Al Qaeda-looking dude. That is a despicable smear, and so cartoonishly McCarthyite in its methodology you can almost hear Bill Kristol chuckling to himself at the awesome semiotics. The other, more profound objection is the formal one regarding whether these suspects deserve representation at all. McCarthy, at least, seems to be making that point. In any case, the objection that some of them are obviously not innocent is hardly salient, in this context, since the proceedings are supposed to determine who is and who isn’t innocent. It’s disturbing that so many conservatives seem to think that these tribunals can have any legitimacy in the absence of meaningful defense for the suspects, and no concern for the damage to American law from holding trials publicized around the world that do not measure up to its standards. And also, what Turnbuckle said – what exactly is “anti-anti terrorist” is itself a live issue in a legitimate debate, in which the approach favored by KAS is not implausibly presented as anti-anti terrorist, or maybe anti-anti-anti-anti terrorist.

    — Matt Feeney · Mar 13, 07:39 PM · #

12. “Take the whole pool of qualified lawyers in the United States. The number who (no doubt quite properly) provide defense services for terrorists is a vanishingly small proportion of the total pool. Yet they are a vastly larger proportion of the lawyers that the Obama administration selects for its staff. Why is that?”

    Take the whole pool of lawyers who are qualified. How many of them are interested in working for the DOJ? How many have experience in issues relevant to the DOJ? Lawyers familiar the issues relevant to Gitmo habeas problems and willing to take the pay cut to work at DOJ probably represent a tiny percentage.

    Steve

    — steve · Mar 13, 08:23 PM · #

13. Mr. Feeney:

    Indeed, it is the substance that is deadly for the Administration. The fact that it has hired so many lawyers who have made an ahistorical argument about whether enemny combatants are entitled to the priveleges of the criminal justice system does crewate the appearance that the Department is pro-terrorist. The reality is more likely that they are just reactionary activists who took the cases because they opposed George W. Bush, not because they support al Qaeda. But their political actions have political consequences.

    — oj · Mar 14, 12:48 AM · #

14. “The reality is more likely that they are just reactionary activists who took the cases because they opposed George W. Bush, not because they support al Qaeda. But their political actions have political consequences.”

    Among the Glenn Beck wing of the conservative movement, yes, those actions have consequences. Among thoughtful conservatives who understand the way the adversarial legal system should work and who don’t think defense attorneys should be unable to work as prosecutors, not so much.

    — Mark in Houston · Mar 14, 12:59 AM · #

15. “Conor, why bother? Nothing was lost on Goldberg—he’s a polemicist and nothing more. I don’t think he’s a stupid person, it’s just that he doesn’t try to make cogent arguments—only ones that have surface appeal to people who agree with him. I don’t understand why people give him the respect of a takedown.”

    The proof is in the pudding:

    Goldberg NEVER responds directly to Conor’s arguments.

    — Socrates · Mar 14, 01:01 AM · #

16. turnbuckle:

    I haven’t explained that because it isn’t what I said. What I said was that it may be that the political taint from their defense of the detainees may be such as to render them unfit for political appointments at Justice.

    Anti-anti-terrorist isn’t sarcastic but a reference to those who were anti-anti-communist during the Cold War. They too were not pro-Soviet but opposed those who were identified as anti-Soviet. The situation seems quite similar here. Those who defend the “rights” of terrorists are not pro-terrorist, just anti-Bush, because he is the author of the war on terror. Had Al Gore been president on 9-11 there would be no hue and cry about Guantanamo, as no one argued that German POWs were entitlked to trials during WWII.

    — oj · Mar 14, 01:06 AM · #

17. Mark:

    Precisely. It’s a popular political problem, not a legal ethics question.

    — oj · Mar 14, 01:13 AM · #

18. oj,

    I take your point about political realities. Had a Gore administration instituted programs of detention and interrogation similar to Bush’s, reactions along political lines would have likely been politically predictable. Moderate Democrats would have been far more forgiving, and it’s the Republicans who would have been the scandalized party.

    Trouble is, your assumption that anything we associate with Guantanamo— dubious efforts to suspend due process and brutal interrogation practices— would have been implemented under Gore is completely unknown and to my mind, quite a stretch. Any argument here is entirely speculative. You believe Bush’s reactions were largely a given, whatever the administration in power. I don’t buy that for a moment. But there’s no way to resolve it.

    Your assertion, shared by McCarthy, that the Gitmo captives are not necessarily entitled to habeas privileges has already been refuted by Spragge. The Geneva Conventions require that legal proceedings possess the fundamentals of a normal western legal system. Access to defense counsel counts as fundamental.

    What you’re doing here is applying the same argument that others repeatedly try regarding prisoner treatment— that the non-uniformed “combatants” held at Guantanamo are not legal soldiers protected by Geneva Conventions. But this matter is moot. In spite of the efforts by Addington and Gonzalez, the last administration never succeeded in removing captives from Geneva protections. After all, that’s the very reason Yoo and Bybee prepared their infamous opinions, to establish treatment that did not violate Geneva. Yoo has never argued that the captives were without rights under Geneva.

    So, what you and McCarthy advocate is a kind of fantasy DOJ/OLC that never existed, one where foreign-born captives could simply be deemed outside any legal protections: no standard of treatment or legal process need apply until a war against a noun is declared over. The members of Bush’s administration who shared in your fantasies ultimately failed to persuade even their own peers. Yoo may have read Geneva in ways that flummox meticulous lawyers, but the very existence of his opinion reveals that Geneva applied nonetheless. That decision was made by the last president, not this one.

    — turnbuckle · Mar 14, 03:05 AM · #

19. To the contrary, they are just like captured soldiers in all our other wars, none of whom received due process nor trials. Indeed, those advocating that we treat prisoners of this war like criminals can not cite any history nor tradition of our ever having done so previously. Nor would Republicans have insisted that President Gore treat them that way.

    — oj · Mar 14, 03:00 AM · #

20. The arguments relating to the historical treatment of prisoners of war do not apply for three reasons:

    1) Most important, the Bush adminsitration said they didn’t. The Bush Administration took the position that whether arrested by third countries, detained on the battlefield in Afghanistan, or bought from bounty hunters, the detainees sent to Guantanamo did not qualify as prisoners of war.

    2) This makes a certain kind of sense, because while a nation can indeed intern enemy armed forces and to a lesser degree citizens of an enemy nation for the duration of the war, this legal doctrine assumes an actual war in progress. In the last decade of the so-called “war on terror”, major combat operations have taken place over a total of perhaps three months. When the American government held German prisoners in the Second World War, it repatriated them after the war ended in the debellation of Nazi Germany. In a war on an emotion, the opposing forces can neither surrender nor negotiate peace, so captives can never go home; the conventions relating to prisoners of war do not intend this result.

    3) The Bush Administration tried to deal with this by branding all of the individuals they held “illegal combatants”. But US Federal law (in the form of the Geneva Conventions), says in so many words that you cannot determine the status of a detainee without an effective process, and you cannot apply punitive sanctions against detainees without a full and proper trial.

    But here I go again, blathering on about law and due process… actually, yes, dammit, this matters. It matters because the future of the United States as a free society, governed by democracy and the rule of law, matters. It matters because you cannot have a society governed by law if the side that loses in the courtroom can drop a brick in a sock and have a go at the opposing lawyers in the alley behind the courthouse. It matters because if this nonsense sets or even influences precedent, no American can count on the right to counsel, and every American defence lawyer will spend their life looking over their shoulder waiting for someone with a video camera and a grudge who doesn’t care about freedom or law to smear them high wide and handsome on you-tube.

    Sorry. Yes, as I meant to say, this doesn’t have anything to do with the rule of law. It has to do with politics. It has to do with a rump faction of a defeated party lashing out blindly to get even with the winners. It has to do with a growing split in the ranks of American conservatives, between the sane ones who want to propose a real alternative going forward, and the bitterenders who want to establish a Bush government in exile.

    Of course, this has one other political implication we haven’t addressed yet. If Americans reject the rule of law handed down through the generations, from England to their founding fathers and thus through over two centuries to this generation, competing visions of law cannot help but benefit. And the major systems of law competing with our heritage of English Common Law include the comprehensive system we loosely refer to with the label “Sharia”.

    — John Spragge · Mar 14, 11:34 AM · #

21. It seems that what oj and Goldberg both fail to recognize is the possibility that there could be some actual truth about what is right here rather than just an issue to be exploited for propaganda purposes. This is why oj seriously made the comment

    “The reality is more likely that they are just reactionary activists who took the cases because they opposed George W. Bush,”

    And why Goldberg’s post has all this talk about James Carville, environmentalists, and the Left.

    It also explains the bizarre equation of calls for prosecuting lawyers who actually broke the law with ridiculous claims that the DOJ lawyers share the values of al Qaeda. After all, these things are equivalent to Goldberg since there’s no other way to evaluate any claim besides looking to see what party it benefits.

    — Geoff · Mar 14, 01:50 PM · #

22. oj is pushing a condensed take on the arguments expressed by Scalia in the 2008 Boumediene v. Bush case: enemy aliens abroad during an ongoing conflict have no guarantee of habeas rights.

    Scalia wrote in dissent, however. The majority found that habeas rights had indeed been unduly suspended at Guantanamo.

    It’s worth a look at both Kennedy’s opinion and Scalia’s dissent. I found them through the Cornell Law School:

    http://www.law.cornell.edu/supct/html/06-1195.ZO.html

    Much of the case hinges on the status of Guantanamo Bay. The dissenters see it as foreign soil, removed from Constitutional authority. The majority recognizes that the United States effectively has full control of the base for the foreseeable future, and that Cuba’s claim of “ultimate sovereignty” is little more than a technicality of law (unless we abandon the base). In practice, real sovereignty belongs to the United States, so Constitutional guarantees should be extended.

    Kennedy’s opinion and Scalia’s dissent both acknowledge that with Guantanamo, we don’t have what can be regarded as a conventional wartime interment camp. The captives are not officially recognized as prisoners of war, few were captured directly by American forces and by 2008, many had been detained for more than six years— by American war standards, an exceptionally long time.

    As the Gitmo detainees were not, by and large, captured by US troops on a battlefield, why then have they been detained? In many cases, no doubt, the government has good evidence to imprison/charge a detainee. In other cases, maybe not. At some point, it needs to be sorted out. Kennedy recognizes that immediate access to habeas rights during armed conflict is impractical, but after six years and considering the camp’s location far from the war zone and under complete control of US authorities, the difficulties one might normally experience imposing legal protections during war time are not present at Gitmo.

    Scalia notes the troubling recidivism of former detainees, suggesting that the evidentiary requirements of a common habeas writ are impractical considering the dicey circumstances/crime scenes involved with most detainees’ arrests. But the instances of former Gitmo captives reengaging in hostilities has been rather low, especially when you consider Rumsfeld’s assurance that they were the “worst of the worst.” By some estimates, something like one in seven freed detainees had joined/rejoined the fight. In the very Washington Post article Scalia references in his dissent, the writer notes what a small fraction of the total prisoners released have taken up arms.

    Scalia seems to take the difficulties of gathering evidence abroad as a reason to assume the best about the government’s case against a detainee and the worst about the detainee’s motives. The majority opinion, on the other hand, senses that the same circumstances that make evidence gathering difficult also make faulty charges more likely— all the more reason to goose the administration to finally make its case against a detainee if indeed it has one.

    A close, 5-4 decision though it was, the high court found that the petitioners deserved the right to face charges and therefore access to counsel. The lawyers who subsequently provided this counsel honorably took on a service deemed necessary by the Constitution.

    (By the way, contrary to what I earlier suggested was an acknowledgment within the Bush administration of habeas rights, it was only after the Boumediene case, in which the government argued against the detainee’ right to face charges, that the habeas writ became available.)

    — turnbuckle · Mar 14, 05:54 PM · #

23. oj – “To the contrary, they are just like captured soldiers in all our other wars, none of whom received due process nor trials.”

    And if the Bush Administration had treated them as such, none of these frickin’ problems would have occured.

    Mike

    — MBunge · Mar 14, 06:03 PM · #

24. The question is quite different: should they then be given political appointments at the public agency that may have to prosecute terrorists?

    Sounds like they would have some very apt and valuable experience in that regard. Like, you know, they might have some insights into what weaknesses in a case defense counsel would pounce on?

    So, yes, they should receive such appointments.

    — Chet · Mar 14, 09:51 PM · #

25. What Chet said, but also: a position as a federal attorney has significant advantages. If you do a good job, it can act as a stepping stone to other things, other forms of career advancement. Conversely, denying such appointments denies individuals these advancements. For a band of defeated ideologues to attack the appointment of federal attorneys for nothing worse than (successfully) arguing a case for constitutional rights the ideologues involved did not want asserted amounts to something very close to perverting the course of justice.

    The advantages do not only go one way, of course. The attorneys who argued for the Guantanamo detainees have a proven track record of success, proposing a theory of constitutional rights to a conservative, mostly Republican-appointed court. They picked their cases well, they picked their arguments well, and they prevailed. As a qualification for a lawyer you might want to hire, I think a proven ability to win ranks rather high on the list.

    As a final point, the so-called “keep America Safe” (note the word “free” appears nowhere in the group’s name) appear to think they can only get elected by turning the American people into poltroons, crying for protection by any means fair or foul. They know themselves best, and they certainly failed extravagantly enough the last time they had power, so I’ll take them at their word. But why do Americans, who famously prefer death to arbitrary government, pay these losers any heed?

    — John Spragge · Mar 15, 12:13 AM · #

26. Mr. Spragge/Mike:

    Quite. The problem arises precisely from the Bush Administration’s attempt to administer some form of formal justice rather than just hold them until the end of hostilities, like normal POWs have always been treated in the Anglosphere.

    The process was not actually justiciable, so the Court having intervened where it has no right to they should just be treated as POWs now.

    — oj · Mar 15, 01:07 AM · #

27. Geoff:

    Close, but the proper lens is what sorts of lawyers the American taxpayers want to employ at Justice.

    — oj · Mar 15, 01:09 AM · #

28. Many of the detainees at Guantanamo did not remotely fall into a legitimate prisoner of war category, and the US had no business holding them without a criminal charge. The minority whom US forces legitimately captured on a battlefield should by precedent have gone home without a stain on their characters at the end of significant combat operations, which meant, at the least, the US should have repatriated the actual prisoners of war by 2003.

    Quite simply, you can’t do an end run around the human rights protections in either the United States Constitution or international law. Period. If governments want to throw people in cells to rot, either their own citizens or those of other countries, they must by long common law precedent account for their actions to the courts. Neither the United States Constitution nor US federal law, nor international humanitarian law (which, of course, includes the treaties that form a part of US federal law) allow for anything else, as the US Supreme Court quite properly ruled.

    — John Spragge · Mar 15, 02:20 AM · #

29. As for the lawyers Americans want at DOJ: I suspect Americans want the lawyers at DOJ to have the same qualifications most people want for government employees: honour and competence. The lawyers concerned have proved their competence by arguing cases with considerable success on a matter of national importance at the Supreme Court level. As for honour, whatever much a defeated and rejected rump of the Republicans (with the same access to you-tube as six billion other people) may want you to believe, for an American lawyer to argue for the essential limits on government that form the basis for the rights enumerated in your constitution hardly amounts to a dishonourable activity.

    — John Spragge · Mar 15, 05:48 PM · #

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