Among the frightening Cheneyisms, this is one of the most bizarre. Apparently carrying on the family tradition of advocating torture and the illegal and indefinite detention of suspected terrorists, Liz Cheney now contends that lawyers who challenged such torture and detention are unqualified for public office. Under the auspices of Keep America Safe and joined by Sen. Charles Grassley, William Kristol and other conservative voices, the loyalty of Justice Department lawyers who (while in private practice) "voluntarily represented terrorists" detained at Quantanamo is being questioned.
Before we get to this outlandish premise, let's talk some facts. The lawyers involved did not represent "terrorists". Along with their gutting of the Constitution, the Cheneys have conveniently overlooked the presumption of innocence, but rather have chosen to presume guilt. Over 420 persons detained at Guantanamo as "enemy combatants" were voluntarily released without any charges ever having been filed. So all confined were not necessarily "terrorists". Indeed, these allegedly disloyal lawyers were seeking to have the detainees charged and tried so that determinations could be made as to whether or not they were, in fact, terrorists as the Bush administration contended.
But putting that aside, even if those represented were actually terrorists or were ultimately found guilty of being terrorists, the idea that somehow their conduct should be imputed to -- or that it should taint the lawyers who represented these men -- is so abhorrent to our system that it defies belief that any person with even a passing knowledge of this country's history and heritage could even utter it. The greatest lawyers in this country have represented terrorists, traitors, serial murderers and rapists, deserters, corrupt politicians and scoundrels of every sort. Can anyone seriously contend that such representation disqualifies them from serving in the Justice Department, on the courts or in other public positions? Is the lawyer for Bernie Madoff now disqualified from public service? Will Ted Olsen, one of the country's most respected, conservative lawyers, be disqualified from appointment to the Supreme Court, even by a Republican administration, because he is representing gays and seeking to legalize gay marriage, contrary to conservative and Republican principles? Should Timothy McVeigh's lawyer be barred from public service or would we have excluded Clarence Darrow from the Justice Department because of his defense of Leopold and Loeb?
But Liz Cheney does not have the dishonor of being the first to suggest that lawyers should be tainted by the causes or persons they represent. In 2007, Charles D. Stimson, the deputy assistant secretary of defense for detainee affairs in the Bush administration, suggested that clients should consider ending their ties with law firms who represented detainees at Guantanomo. And Sen. Jeff Sessions, the Judiciary Committee's ranking Republican opposed the nomination of Judge Edward Chen, because he represented a client who challenged ballot measures that banned government affirmative action programs including race and gender preferences.
Unfortunately the Obama administration is not without its own problems in this regard. In a recent argument before the Supreme Court in the case Holder v. Humanitarian Law Project: "Ms. Kagan (the Solicitor General) gave examples of prohibited conduct. A lawyer would commit a crime, she said, by filing a friend-of-court brief on behalf of a terrorist group" (NY Times 2/24/10) In all fairness, she did make some attempt to distinguish between actually representing a terrorist organization and filing an amicus brief that supports their position, a distinction that totally eludes me. I, and a number of my former colleagues, have filed several amicus briefs supporting the rights of the detainees to hearings and habeas corpus relief. I suspect that we would all be surprised to learn that we might be committing a crime by advocating constitutional rights for any individuals or groups, no matter how reviled they may be.
Each day I think that politics cannot get any worse, and I am proven wrong. To me this is a new low. Lawyers who represent alleged terrorists do not support terrorism in the same way that lawyers who represent alleged murderers do not support murder. If we condemn and disqualify from public office those persons whose only fault is defending the constitutional rights of the accused (no matter how vile the accusations) then we have shot an arrow through the heart of our democracy.