A video released last week by Keep America Safe, a group led by Elizabeth Cheney, takes aim at lawyers who have represented Guantánamo detainees and are now working in the Justice Department. It asks, “Who are these government officials? . . . Whose values do they share?”
This week, a group of prominent lawyers, many of them conservatives and former Bush administration officials, signed a letter denouncing the attack as a “shameful” effort that “maligns the patriotism of people who have taken honorable positions on contested questions.”
Is it fair to criticize lawyers for the actions of their clients? And why is there always mileage to be gained from attacking lawyers (with the attackers often lawyers themselves)?
[From Attacking Lawyers From the Right and Left - Room for Debate Blog - NYTimes.com]
This is a very disturbing trend, and I have issues with a number of the arguments proposed by a few of these writers. Most fundamentally, what do the critics of these lawyers propose as an alternative? In the absence of legal council, what value is there in a trial? It seems they are advocating summary, military judgement without the ability of the defendant to make a case. That is a strange form of justice, and one we would criticize if it was applied in Iran, North Korea, etc.
Alan Dershowitz says:
Lawyers should remain free to provide zealous representation and cutting edge advice to clients, whether their clients are terrorists who are accused of waging war against our nation, or a government that is accused of denying rights to these terrorists. That is the strength of our adversary system of justice.
[From Attacking Lawyers From the Right and Left - Room for Debate Blog - NYTimes.com]
This is a critical point; we have an adversary system of justice. In order for the system to function, the defendant must be able to offer a vigorous defense. This keeps the system honest and robust and protects all of us.
Stephen Gillers says:
Sadly, people are sometimes quick to criticize lawyers because of the identity of their clients. These critics may not understand the role lawyers play in our constitutional democracy. Or, far worse, they do understand yet act for their own ideological advantage. Their criticism is not only wrong, it is dangerous. It subverts the rule of law.
Fortunately, as we now see, when lawyers are attacked for fulfilling the promise that enables us to enjoy the rule of law, other lawyers, from across the political spectrum, rush to their defense. That is the profession at its finest. This response is our best protection against the ignorance or opportunism of the critics.
[From Attacking Lawyers From the Right and Left - Room for Debate Blog - NYTimes.com]
Sadly, in contrast, some on the right pull out the tired old elitist argument: "Here is the legal profession’s message for the American people: 'We're just more important than you are.'" (Andrew McCarthy) Mr McCarthy, that is the exact opposite of what a stable mind sees in their actions. Isn't this a statement by the legal profession that our system of law and our constitution is more important than any individual convictions? They knew they were standing up for unpopular people, the same way a lawyer defending a pedophile knows it, but they also know that competent defense is vital to a fair trial.
Andrew McCarthy says:
The lawyers chose to offer themselves, gratis, to our enemies for litigation the Constitution does not require. They did so knowing that this litigation would be harmful to the war effort — a fact the Supreme Court emphasized when it denied war prisoners the right to file habeas claims in 1950. The fact that we don’t forbid lawyers from doing this hardly means Americans have to approve of it.
[From Attacking Lawyers From the Right and Left - Room for Debate Blog - NYTimes.com]
Mr McCarthy's opinion that the Constitution does not protect these prisoners is a dangerous statement. The Supreme Court ruled in Boumediene v. Bush prisoners were entitled to protection under the Constitution. Later rulings also supported their access to civilian courts.
My question is this: what are the conservatives so afraid of? If we have strong evidence that someone is a threat, why not trust our legal system to deal with it? Perhaps they afraid that years of torture may have turned even the innocent prisoners into future terrorists...
