Andrew C. McCarthy
Saturday, April 30, 2011
Nearly 20 years ago, I asked the late William Kunstler about his philosophy of lawyering. A flamboyant leftist who proudly represented jihadists just as he proudly represented many other anti-American radicals, Bill succinctly replied, “Everybody’s entitled to a lawyer, but nobody’s entitled to me!”
When speaking with him outside the lines of litigation, I was always beguiled by the aging rogue’s lack of pretense. Kunstler maintained that attorneys are under no obligation to take on every client who walks in the door. Once you took a case, though, it was your duty to give it your all. And because giving his all and zealously ensuring that the client got every available advantage was the attorney’s first duty, a lawyer had to be given a lot of leeway in choosing the clients and causes to which he would dedicate himself. It was one of the few things on which we agreed.
In these chats, there was about Kunstler a refreshing absence of twaddle about the lofty nobility of his choices, a marked contrast to the drivel that flows from the pen of Conor Friedersdorf. At The Atlantic on Thursday, Mr. Friedersdorf delivered himself of what, even by his standards, was a shrill rant, provoked by my recent column on the hypocrisy of the Lawyer Left, which finds the American people’s support of traditional marriage too distasteful to defend but can’t queue up fast enough to volunteer its wares to assorted radicals, psychopaths, and deadbeats.
I used the occasion of King & Spalding’s abandonment of its Defense of Marriage Act clients — congressional representatives of the American people seeking to turn back challenges to DOMA — to highlight facts the legal profession, in its arrogance, dares you not to notice.
As an institution, the profession is the vanguard of the movement Left. Its votaries make their choices about representation based on progressive politics. Attorneys who are resistant to the cause but desperate to remain in the club are pressured to conform or at the very least to profess admiration for the heroic good faith in which the Lawyer Left remorselessly pursues its agenda. Thus can the profession reliably bank on cover from the GOP Lawyers Guild whenever a left-wing attorney gets nominated to a high government post or undertakes to champion some anti-bourgeois cause — and also bank on there being no need to return the favor.
K&S understands how the game is played. The firm wants to be perceived as supportive of gay marriage. In the same way, through its pro bono work for terrorists and death-row murderers, it wants to be perceived as supportive of judicializing warfare and expanding the rights of criminals. The firm figures it can’t afford to be on the wrong side of the culture war.
To most Americans, the progressive punch-list is deeply unpopular. Fortunately, progressives like Friedersdorf are much smarter than the rest of us — just like our progressive president, who, we learned from the Washington Post’s Dana Milbank this week, is actually too smart to be president. Part of what makes them so smart is their Alinskyite penchant for coopting causes and language. Friedersdorf is a “conservative,” don’t you know, skilled at cloaking legal radicalism in high-minded tropes about fidelity to our constitutional traditions.
He is in a snit because, unlike the GOP Lawyers Guild he prefers, I can’t seem to follow the Gitmo script, which calls for showering the Lawyer Left with fawning praise that can be used like a Black Panther billyclub to beat down conservative critics. Specifically, Friedersdorf is outraged by my “brazen” repetition of an effective critique the Left thought it had smothered months ago: namely, that it is perfectly fitting to label as the “al-Qaeda Seven” a group of seven lawyers who, before joining the Obama Justice Department, volunteered their services to the enemy in wartime.
I don’t know where Friedersdorf was when the Lawyer Left was calling us Bushitler-era prosecutors “the American Taliban.” In any case, as I’ve made clear before, those who coined the term “al-Qaeda Seven” were obviously not saying these lawyers were members of al-Qaeda or that they endorsed terrorism — though they are, for my taste, too indifferent to the barbarity of terrorism. The point is that they made a choice to do something they did not have to do, that no lawyer had to do. It was therefore fair to judge them on their choice, to infer a sympathetic ear for the terrorist portrayal of a corrupt and unjust America. It was also reasonable to predict that, on their watch, the Justice Department would do things like return terrorism to a criminal-justice problem rather than a wartime military challenge, push for enhanced due process for terrorists, turn the battlefield into a crime scene complete with Miranda warnings for captured combatants, and elevate “Muslim outreach” over aggressive enforcement against Islamist groups that materially support terrorists. (Guess what happened.)
Calling these attorneys the “al-Qaeda Seven” is, I contend, no more offensive than calling attorneys who choose to represent the mob “mob lawyers.” Outrageous, counters Friedersdorf. I need to understand, he inveighs, that “the Gitmo bar wasn’t volunteering their services on behalf of the enemy — they were working on behalf of every citizen who values the rule of law and the most basic norms of Western justice.” In a hilarious bit of unintended irony, Friedersdorf consigns me — due to my vulgarity and lack of appreciation of the heroic contribution the terrorists’ volunteer lawyers have made to our constitutional system — to “the pantheon of American McCarthyites.” Hmm, “McCarthy the McCarthyite” — how very clever. And thank goodness Conor would never stoop to lodging “one of the most scurrilous charges recently made in American politics.”
Life is too short for me to follow Friedersdorf’s meanderings, so I confess to not knowing whether he is a lawyer. Suffice it to say, though, that he doesn’t know much about the law or our constitutional system. Some basics: The centuries-old law of war is the “rule of law” in wartime. Under this basic norm of Western justice, enemy combatants may be held without charge or trial until the conclusion of hostilities. When they are kept away from U.S. courts, it is not, as Friedersdorf contends, indicative of an insidious conspiracy. The decision to detain them is no more a judicial matter than is the decision to kill them with Predator drones.
In the history of the United States, millions of aliens have been detained because they were suspected by our warfighters of conducting operations on behalf of the enemy. No doubt, some have been innocent, as Friedersdorf says some of the Gitmo detainees have been innocent. But in wartime, the priority — until recently — has been victory, not due process for the enemy. In fact, if Congress formally declares war against a country, it has been the law for over two centuries that the nationals of that country who happen to be in our country may be detained; they don’t have to be “guilty” of anything other than the allegiance to the enemy their citizenship implies.
Never had it been the case, prior to the Lawyer Left’s activism in this war, that the rule of law was thought to require giving enemy detainees access to our courts. In fact, the post–World War II Supreme Court rejected the idea as absurd. None other than Justice Robert Jackson, a progressive named to the Supreme Court by FDR after serving as his attorney general, explained that to permit such a thing
would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home.Exhorted by the Lawyer Left, five willful justices on the Supreme Court abandoned this sensible jurisprudence, laying out the courthouse welcome mat for alien terrorists who target Americans for mass murder. Pace Friedersdorf, this was not reflective of the rule of law or any sort of Western norm. It was a radical departure. Those who imposed it were actually working against every citizen who values the wartime rule of law.
Our constitutional system had always reposed responsibility for handling enemy prisoners in the political branches, not the courts. This was not because the framers were insensitive to the fact that hellish things happen in wartime, including the prisoner abuse that so troubles Friedersdorf. They simply trusted the American people to address those matters through their elected officials in Congress and the executive branch — both of which, by the way, have aggressively investigated prisoner abuse in the War on Terror, resulting in severe punishments for malevolent officials. The framers wanted national-security decisions to be made by political actors accountable to the people whose lives were at stake. The courts, quite intentionally, are insulated from political accountability; their institutional responsibility to ensure fairness to parties in litigation inevitably inflates legal protections, and we can’t vote them out of office if these ever-evolving protections compromise our security.
Even the current Supreme Court, which has turned the framers’ construct on its head, did not require that war prisoners be given counsel for these novel legal challenges to their detention. Other than the very few who are accused of war crimes (and are guaranteed military counsel), the detainees are not defendants accused of a crime. Only accused defendants are guaranteed counsel in our system. The detainees, to the contrary, are plaintiffs who’ve been allowed by the courts to sue our nation in the middle of their war to destroy our nation. Their suits are habeas corpus actions, and there is no right to counsel.
Millions of Americans detained in our civilian prisons file habeas suits, alleging that the procedures that landed them in jail, or their conditions of confinement, are unlawful. Our law invites this, but the inmates must either represent themselves or find a lawyer willing to take the case. For the lawyer, that often means choosing to work for free — that is, deciding that the inmate’s cause is more worth his time and effort than other pro bono causes (say, representing CIA interrogators or defending DOMA) to which he’d otherwise be able to donate his services.
That brings us to the al-Qaeda Seven and the rest of the Gitmo bar. There is no limit to the number of causes these lawyers could have volunteered to represent. You cannot even say of their Gitmo clients, as Kunstler said about criminal defendants, that “everybody’s entitled to a lawyer, but nobody’s entitled to me.” Enemy prisoners have no entitlement to any lawyer, much less to a particular lawyer. An attorney who chooses to work for such clients has made a conscious choice to help them litigate their wartime suits against the American people — just like the conscious choices King & Spalding makes to represent murderers on death row or to drop DOMA like a hot potato.
The world’s Friedersdorfs help the Lawyer Left obscure this uncongenial fact by swaddling such choices in rhetorical majesty: We’re instructed that they are selflessly serving the “rule of law,” “our values,” “our commitment to justice,” “our Western norms,” “our constitutional traditions,” etc. We are saps if we fall for this bloviating.
John Yoo is a brilliant, ethical lawyer who, while at the Justice Department, was tasked with mapping the parameters of interrogation law so that CIA officials would know what they could and could not do to high-level al-Qaeda captives. It wasn’t Yoo’s policy. He was simply an attorney advising a client. Did the Lawyer Left say he was merely fulfilling a cherished constitutional role? Did they depict him as a latter-day John Adams, honorably representing an unpopular cause? Of course not: They tried, instead, to ruin him. And when I’m done writing this, do you figure they’re going to say, “McCarthy’s just a lawyer acting in the best professional tradition of ensuring that all sides are represented in public debates about the law”? No, they only say that when you’re taking their side. Dare go off the reservation and you’ve cemented your place in “the pantheon of American McCarthyites.”
It’s a con job. The Lawyer Left promotes a cause, not the Constitution. They’re within their rights to do that — it’s still a moderately free country, and I’m not suggesting that anyone try to destroy their lives and livelihoods like they tried to destroy Yoo’s. I just don’t see any reason to pretend that their choices reflect a high calling rather than a practical political strategy, one that has implications when Americans make the mistake of empowering them to formulate policy.
Kunstler once won a case for the New England crime boss Ray Patriarcha, one of the many well-heeled mobsters he represented, effectively redistributing their wealth to underwrite his labors of love on behalf of anti-American radicals who could not afford him. At a swank restaurant for the ensuing victory celebration, the don invited him to propose a toast. Regrettably, Conor Friedersdorf wasn’t on hand to advise that he effuse about “the rule of law” and “the most basic norms of Western justice.” Kunstler raised his glass and exclaimed, “Here’s to crime.”