Outside Counsel

I'd have thought that among lawyers condemnation of Liz Cheney and Bill Kristol's equating the lawyers who represented Guantanamo detainees with their clients would have been instantaneous and universal. Dahlia Lithwick got it right: "When the "al-Qaida Seven" and their two DoJ colleagues fought to defend alleged terrorists at Guantanamo Bay, they weren't fighting to protect jihadist murderers. They were defending the U.S. Constitution—the great whomping chunks of the Bill of Rights that Cheney and her friends are so eager to write out of existence. They did it because that's what lawyers are ethically obligated to do. They did it because—as Spencer Ackerman points out—the Military Commissions Act of 2006 expressly provided that detainees get defense lawyers. And they did it, as Jay Bookman notes, for the same reason John Adams agreed to represent British soldiers charged with killing civilians during the Boston Massacre in 1770. Because long before Liz Cheney was born and long after she's gone, the Bill of Rights requires serious people to take it seriously."

To my dismay, however, there is apparently a serious effort among nominally conservative legal scholars to justify Ms. Cheney's remarks. Stewart Baker, a contributor to the Volokh Conspiracy argues that because the Guantanamo accused were already being provided with perfectly good military defense counsel, volunteering to defend them is an exception to the generally accepted notion that the beliefs of counsel should not be conflated with the actions of the defendant because "These are lawyers who represented avowed enemies of the United States – for free – because they thought it made them look good. If you don’t share that view, she’s saying, maybe you don’t share their other views about how the justice system should handle terrorism cases."

Can you spot the false premise? Mr. Baker, a partner in the Washington office of Steptoe & Johnson LLP, and formerly first Assistant Secretary for Policy at the Department of Homeland Security is arguing that-- notwithstanding the Supreme Court's ultimate holding on the question-- the Bush Administration's legal policy with respect to the poor bastards at Gitmo was correct and that it was wrong somehow to oppose it. This is really kind of staggering, even leaving aside the fact that Mr. Brand appears to be assuming guilt on the part of the accused. When you are a lawyer belief in the system should be fundamental, and if you believe the system is broken you should work to fix it. Mr. Brand, and Mr. Kristol, and Ms. Cheney apparently believe that the US justice system is too good for some people, and want to see some sort of kangaroo process put into place for people they don't like. This is appalling, and demonstrates a fundamental misunderstanding of what has made American jurisprudence stand as a beacon to to other systems. What they are saying, in effect, is that we are not what we say we are, which impresses me as unpatriotic, unlawyerly, and terribly, terribly sad.