Monday, March 15, 2010
The Gitmo Bar
All of you who were so quick to defend the honor of lawyers who might voluntarily take up the cause of unlawful combatants housed at Gitmo and elsewhere should read this. Perhaps their nobility and honor aren't quite so high as is thought.
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21 comments:
Before I get too far in a spirited defense of these lawyers, have you read the pamphlet in question?
-WM
Why don't you ask Paul, Weiss, Rifkind, Wharton & Garrison?
That's a goofy non-answer, ""The Hammer"".
It's portrayed in as an anti-American, anti-GWOT "screed" (op-ed's word). I'm just wondering if anyone bothered to read it before swallowing the op-ed's claims about what it says.
Where was that skepticism when a no-nothing ACORN activist was running for President. I suppose then it was a matter of faith.
Uh huh.
Anyone else read the "screed?"
"Written entirely in Arabic..." to me means written entirely in Arabic. If it were in front of you could you read it? And why would it be translated? They're targeting jihadists not Westerners. The commander at Gitmo as well as DoD thought it sufficiently provocative to ban the law firm that provided the rubbish, illegally I might add. And the author produced a credible motive; the lawyers wanted to gain the trust and confidence of the terrorists. Otherwise no need for lawyers and their leftist street-cred-ticket is null and void.
If you don't believe the author that's up to you but it makes sense to me.
No, WM, I have not read it. But the op-ed contains charges relating both to it and to other instances of questionable behavior.
CW,
We can't easily verify the "other questionable behavior" part… but the AI pamphlet isn't one tenth as evil as it's portrayed. It's anti-toture, for sure -- but I can't see a single instance of anything that rises even close to the level alleged. It's not anti-American, or even anti-GWOT.
-WM
Okay then, WM--you seem like a reasonable person--if I concede that the pamphlet in question is not as evil as it is portrayed, are you ready to concede that the conduct of the Gitmo Bar isn't as honorable and noble as it is being portrayed?
So you've read it? Well just post it and we can decide for ourselves.
Come on WM, post it, we're all waiting.
CW,
I appreciate your comment, but I disagree with the logic.
We have the op-ed, which makes many assertions, some easily examined by us and some that aren't. We have a core one -- the pamphlet, which features prominently in the column -- that is clearly not as portrayed.*
Why, then, given that one part of the column we can verify isn't true, would I concede that the unprovable (or beyond-our-capabilities-to-prove) is true?
I make no claim that defending these assholes is the most noble thing in the Western World. I'm glad that someone is doing it, but that's about as much as I'll laud it. That said, it's NOT treasonous, vile, or even deplorable. (If you think so, then what of SCOTUS, who have agreed with them? Of the military judges who have set "terrorists" free?) As I see it, the argument, at best, hasn't been proven. (When core aspects of the argument are over-hyped and contingent mostly on the assumption I can't work Google to find the brochure, I think that's a generous conclusion.)
Anyhow, I had a CO who... um... advised me that it would be in my best interest to read Ref A instead of "farming out my thinking" to someone else. Ref A, in this case:
My favorite part is quoted below. Highlighting is mine.
-WM
*Do a search on "racist" -- it's quoted in the op-ed. In the context of the entire brochure, AI is trying to argue that torture is PERCEIVED as racist, not that the torture is fundamentally racist. It only appears once in 19 pages -- hardly a core argument.
My cut-and-paste was too long; had to split posts.
"There is no contradiction between security and human rights. You cannot have one without the other. In a society where people are protected from violent attacks, whatever the source, their rights to life and physical and mental integrity are respected. The right to be free from torture and cruel, inhuman or degrading treatment is at the heart of a secure society.
Governments have to consider and balance everyone’s rights. It may be necessary to deprive someone of their liberty to protect others. Such decisions are made in the criminal justice system. In extreme circumstances, international human rights law allows governments to go further in limiting basic freedoms, for example by imposing curfews or temporarily forbidding gatherings. But there is a red line that no government can cross – the ban on torture and ill-treatment. All governments have agreed that this ban can never be loosened, however grave the threat.
Governments have a duty to take all reasonable steps to prevent acts of terror, and to bring to justice those responsible for committing or planning such acts. But they must not respond to terror with terror. The use of torture and ill-treatment can jeopardize the process of bringing to justice those who have committed acts of terror, since many countries prohibit information obtained as a result of torture being used as evidence. The people behind the bombings of buses in Israel, Iraq and Turkey, or the clubs in Bali, or the trains in Madrid and London, should be brought to justice in fair trials. By using methods that undermine the prospect of such justice and that lower society’s standards, governments contribute to the cycle of insecurity and violence.
The threat of international terrorism requires law enforcement agencies to develop special skills and techniques in policing, investigation and intelligence, including international cooperation. Such techniques need to address the new characteristics of international terrorism, such as its use of the Internet and other new technology. That may require new forensic and other law enforcement techniques, but it cannot justify the use of old unlawful methods such as torture and ill-treatment.
Human rights are not a luxury for good times. They must be upheld always, including in times of danger and insecurity. Adherence to clear rules, laid down by international consensus in human rights treaties, is especially important during conflicts, emergencies or crises because at such times there is always some "necessity" that can be used to try and justify abuses, no matter how heinous. Respect for human rights is the route to security, not the obstacle to it."
Do you have or have you read the material provided to the terrorists at Gitmo? Yes or no?
Hrm.
My apologies; I put brackets around the link and blogger didn't post it.
The link I was trying for:
http://bit.ly/a7ltOs
Anon--your former CO sounds like a smart person, as do you.
I'm probably not going to read the pamphlet. I'll stipulate it isn't nearly as bad as you say it is. I will remain dubious as to why a lawyer would share it with their client, but as I'm not a trained lawyer--will remain ignorant. I will however, admire the moral flexibility of the "it isn't one tenth as evil" standard you've put forth.
So let's cut to the chase--if Ashcroft had appointed a bunch of lawyers who represented white supremacists to the civil rights division at Justice, I hardly think those crying big tears for the Gitmo Bar would have done so for them. This isn't JUST a question of the nobility and honor of the lawyers--it is one of judgment by government officials, of the public's right to know what kind of people are serving it and whether there may be conflicts of interest at work.
If even "one-tenth" of what Burlingame writes is true, then there were instances in which lawyers aided and abetted the enemy--it is difficult to reach any other conclusion. Mr. Holder and others believed that I did not have either a right or an interest in knowing who in his employ had been part of these defense efforts. Even if I were to swallow the nobility line (which I won't)--is there not a shred of logic left that would suggest that people who VOLUNTEERED to defend unlawful combatants and who made very public statements of support for them (and against the government at the time)might not exactly be the right people to make decisions pertaining to the status of such detainees?
That the detainees had a right to lawyers is--unfortunately for our future--now the law of the land (this one will come back to bite us--perhaps not in our lifetimes, but it will). This unfortunate fact does not in some way inoculate those who defended them from public scrutiny. Let's face it, the charges of "anti-Americanism" are flying all over this one, in both directions. I am considered by some to be "anti-American" because I am not bowing down at the altar of respect for the priesthood of the law who selflessly gave of themselves to protect our Constitution by defending those who might subvert it. I am considered "McCarthyite" for suggesting that my fellow citizens and I had a right to know what influential people in the Justice Department were doing with their time before they became government figures.
So here is ground truth for me:
1. I think the Supreme Court got it wrong here, and that in general, the Gitmo detainees were not worthy of Constitutional protections. But again, I'm a pogue, they are the Supremes, that's the law of the land.
2. Since the Supremes made the decision they did, I believe then that lawyers who volunteered to take up their cases were acting within the ethics of their profession and in the interests of the nation as explicated in a Supreme Court decision WITH WHICH I DISAGREE.
3. I believe that there were some lawyers who took on this work not out of a sense of duty to the Constitution, but out of a strong sense of protest against the cause that created the detention of their clients. Defending one was a method of attacking the other.
4. I believe that some of these lawyers crossed ethical and professional lines in their zealous pursuit of justice for their clients.
5. I believe that service as a volunteer lawyer at Gitmo does not necessarily render one unfit for Service in the Justice Department.
6. I believe that there are legitimate conflict of interest questions that arise from the appointment of lawyers to positions at Justice dealing with detainees who once defended them.
7. I believe the American public has a right to know about the legal activities of the lawyers appointed to the Justice Department.
8. I believe that both sides of this issue are guilty of overblown rhetoric. Defending someone at Gitmo is not necessarily treasonous, nor are the actions of those who are bringing this to our attention "McCarthyism".
9. I believe I need another cup of coffee.
CW,
CO was indeed a smart fellow! I apologize for my anonymity, too; I can't get entirely comfortable with it, but think it's best for the moment.
Your white supremacist argument is the best one you make, I think. It'd clearly change my fervor over the issue, but there are some important distinctions that make it less of a parallel than immediately apparent. For instance, detainee rights were not (and, to a degree, still are not) fully defined in the law. I don't think there's much new in the white supremacist area of jurisprudence that hasn't been dealt with in the last 40 years.
There's also the sticky fact that these lawyers have been proven right in dozens (hundreds?) of cases. I have great faith in our men and women at the tip of the spear, but it stops far short of believing in their infallibility when it comes to correctly identifying foreigners who may or may not be bad guys. So, if we stipulate that some non-bad guys are sent to GITMO, how are we then to condemn the next step in the process? (A process, mind you, guaranteed by the Constitution and various acts since 2001.)
I'm going to go back to the pamphlet. It's 19 pages of documented facts. It sure looks like something I'd be interested in for my defense if I were a detainee. Sure, plenty of it is argumentative -- it's from Amnesty International! But I couldn't find any obvious misrepresentations of fact. It doesn't incite violence or advocate non-legal resistance. The audience is clearly not detainees. To cite it as the basis for charging a group of people with some kind of nefarious, America-hating crusade is ludicrous. (It's an interesting comparison to the op-ed itself, in that regard, which has a has a much looser grasp of the facts.)
As far as the charge that they can't deal with detainees as a group, I think that's silly on the face of it. I'm pretty sure every AG has served as a prosecutor and/or defense attorney at one point, along with plenty of Directors of the FBI. No one's making the case that they can't deal impartially with criminals, are they? These lawyers would need to recuse themselves from anything specific to a client they'd dealt with, but that's standard practice for thousands of jobs (both private and gov't service).
As for the implication that these guys are so important that they're somehow shaping detainee policy without anyone noticing... really? If they were important, they'd be confirmed by the Senate (or, in the case of this Congress, sitting around waiting on confirmation). Are they even SES's? I don't think so, or this "who are they" campaign could be answered in 30 seconds with their posted biographies. So we're probably talking about some GS-13s & 14s. I wouldn't even bet they're all working on detainee issues for DOJ. It's a big dept (>110k). But these seven are secretly steering it on one of the major issues?
So we have a group of people working for the executive, in accordance with the laws written by the legislative and under the express consent of the judicial. Where is the problem, again? We both know that there are far, far, far more weighty decisions being made every day by field- and company-grade officers with oversight that approximates zero when compared with what these guys are doing in the bowels of DOJ. Yet these lawyers are the ones that are making the US less safe? If so... well, our country is far less hardy than I suppose.
-WM
(Upon re-reading, I don't want to leave the impression that I think company and field-grade officers are making us less safe. I'm just comparing the amount of oversight they have vs. the microscope that the detainee realm is operating under.)
Your WSJ article says nothing about the so-called "Al Queda Seven." The smear against these attorneys, now with the DOJ, had nothing to do with unethical conduct, but merely that they represented Guantanamo prisoners. This is precisely why it is reprehensible.
If an individual attorney engages in unethical conduct, fine, call that attorney to task. This provides no basis, however, to question the honor, integrity, or patriotism of the entire "Gitmo Bar."
Anon 2 (can't sort all you anons out). The prevailing narrative of folks supporting the AQ7 is that they were basically doing the Lord's work, volunteers, patriots, etc. This op-ed raises the distinct possibility that some weren't quite that honorable.
The Cheyney/Burlingame/Kristol group--are over the top. I"ve conceded the "overblown" rhetoric. But the point remains valid that the Attorney General thought that the American public did not have the right to know which of his lawyers had provided these wondrous services. It took a "campaign" to get the answers.
Please read my 9 points made earlier--which encapsulate the way I feel about this subject.
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