Lawmakers have opened another front in their war on Obama’s war on terrorism—this time implying that political appointees in the Justice Department have their loyalties in the wrong place. In recent weeks, Sen. Charles Grassley (R-IA) asked the Attorney General to list appointees who advocated for Guantanamo detainees prior to joining the Department. When Attorney General Holder declined, GOP representative Peter King (R-NY) voiced confusion: why wouldn’t Holder reveal the names of appointees who had “represented terrorists”?
Attorneys who represent unpopular clients play a key role in our justice system; in so doing they uphold the highest constitutional values and traditions of our country. We rely on same values and traditions, in fact, to separate the guilty from the innocent and to convict only those deserving of punishment. Our legal system—and the protections it affords—is not just for those who are parties to criminal proceedings. It’s also for the rest of us. This legal system—and the rules on which it is predicated—works to ensure that no matter how heinous the crime, our method of bringing the guilty to justice does not replicate their barbarity. Regardless of how high passions run, we do not abandon the elements of our legal system—including the right to a lawyer—that guarantee the most accurate results. Abiding by the rules of this system is how we lash ourselves to the mast, and ensure that, even in the most tumultuous times, we do not allow ourselves to adopt tactics inconsistent with our values and likely to lead to inaccurate results.
Implications that those who represent the men held at Guantanamo, who insist that they deserve zealous representation and fair trials, are somehow aiding the enemy are not merely attacks on those attorneys. They are attacks on this very system and its insistence that we do not allow our prejudices or our fears to drive us to lawlessness.
The constitutional entitlement to an attorney—and attorneys’ professional ethical obligations to provide zealous representation of every client, no matter what acts they might be accused of having committed—is part of this system. It’s not surprising that attorneys who represented Guantánamo detainees qualified for Justice Department positions. A lawyer’s decision to represent a detainee no more disqualifies her from handling detainee issues than a lawyer’s prior experience as corporate counsel disqualifies her from work with the Justice Department’s Antitrust Division.
Didn’t we abandon years ago the inane notion that there is something seditious about attorneys who advocate on behalf of terror detainees?
In 2007, a Defense Department official called for corporations to boycott law firms who represented “terrorists” at Guantanamo; he was roundly criticized. And not just by the attorneys at issue, but by the editorial boards of major U.S. newspapers—the Washington Post, LA Times, and New York Times, to name a few—and by the deans of several prominent U.S. law schools. The Department of Defense itself explicitly repudiated the official’s remarks.
Everyone shares an interest in making our nation more secure. But sacrificing the essential elements of our justice system is no way to pursue the goal of security. Especially when that sacrifice is motivated by unfounded fear.
Make no mistake about it: claims that the Administration has “brought al Qaeda lawyers inside the Department of Justice” incite baseless fear; this in turn, lowers public tolerance for the constraints imposed by rule of law. But in throwing off those constraints, we throw away, too, the very rules designed to incapacitate dangerous individuals.
These allegations, however, lack even the veneer of credibility. Is it remotely plausible to consider Deputy Solicitor General Neal Katyal an “al Qaeda lawyer” because he worked on a behalf of a Guantánamo detainee in a Supreme Court case, Hamdan v. Rumsfeld, in which the majority of the Justices agreed with him? Does the majority opinion in this case raise suspicions about the Supreme Court majority in Hamdan as well?
As a nation, we face unique challenges, including terrorist threats. We must meet these with the same convictions and in the same spirit with which we face all other threats: with a strong sense of who we are as a country and a firm grasp on the values that make that country worth defending. Doing so can only serve to strengthen our justice system, thereby increasing both our safety and our freedom.