It looks like we have a brouhaha (without the ha ha) raging in our midst. Liberals (and a few conservatives) are in a tizzy because Liz Cheney, daughter of the former vice president, is questioning the “values” of American lawyers who while in private practice went out of their way to represent alleged terrorists held at Guantanamo. And not just any lawyers. This became a problem for Ms. Cheney, and others, after nine of those lawyers were hired by the U.S. Justice Department.
At first, Justice didn’t tell us who these lawyers were. They kept their names secret. So Ms. Cheney’s group – Keep America Safe — put out an on-line video that demanded to know, “Who Are the al Qaeda Seven?” and “Whose values do they share.”
This is when the firestorm began — fueled by an editorial in the New York Times that wanted to make sure we all understood the basics of junior high school civics. “In representing Guantanamo detainees,” the Times told us, “they [defense lawyers] were in no way advocating for terrorism. They were ensuring that deeply disliked individuals were able to make their case in court, even ones charged with heinous acts ….”
To question the loyalty of those lawyers, the Times argued, was nothing more than modern day McCarthyism. Whether it’s that or not, let’s acknowledge the obvious: lawyers are not un-American just because they represent people who hate America. Lawyers represent murderers all the time. That doesn’t make lawyers killers, or sympathetic to killers.
But let’s make sure we also understand that these nine lawyers, like all of us, have just so much free time. They could have used that time to represent all sorts of people in trouble – like U.S. soldiers accused of war crimes. They didn’t. And that is their right. But is it some kind of “smear” (as the New York Times editorial put it) to wonder “Whose values do they share”? Or if the phrase offends, how about this: Who gets up out of his comfy chair and nice office far, far away from Guantanamo Bay and decides to do pro bono work for people accused of conspiring to kill his fellow Americans? It may be noble to take on such a thankless job. Or it may not.
And let’s go a baby step further. Let’s turn the tables and see how we would react if we changed just a few tiny facts in the scenario. Let’s say it was a conservative Republican president and his right-wing attorney general who hired Justice Department lawyers, for its civil rights division – lawyers who voluntarily defended Ku Klux Klan members accused of heinous crimes against African-Americans? Wouldn’t that raise eyebrows – even though the lawyers were not defending KKK terror, only the racists who perpetrated it? All those lawyers would be doing, after all, is making sure that “deeply disliked individuals were able to make their case in court” – exactly what those real life lawyers were doing for the suspected terrorists? Still, wouldn’t decent Americans – not to mention the gods who write editorials at the New York Times — wonder: Why hire them of all people? And why keep their names secret? What are they trying to hide at Justice?
And is it really McCarthyism to wonder if lawyers who represent suspected terrorists have a judicial philosophy that might shape Justice Department policy? I would certainly wonder if lawyers who went out of their way to represent the Klan had a philosophy that might shape civil rights policy. I’d want to know whose values they shared. I’d want their names made public. And so would the New York Times.