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Selective McCarthyism

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By Marc A. Thiessen
Tuesday, March 9, 2010

Would most Americans want to know if the Justice Department had hired a bunch of mob lawyers and put them in charge of mob cases? Or a group of drug cartel lawyers and put them in charge of drug cases? Would they want their elected representatives to find out who these lawyers were, which mob bosses and drug lords they had worked for, and what roles they were now playing at the Justice Department? Of course they would -- and rightly so.

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Yet Attorney General Eric Holder hired former al-Qaeda lawyers to serve in the Justice Department and resisted providing Congress this basic information. In November, Republicans on the Senate Judiciary Committee sent Holder a letter requesting that he identify officials who represented terrorists or worked for organizations advocating on their behalf, the cases and projects they worked on before coming to the Justice Department, the cases and projects they've worked on since joining the administration, and a list of officials who have recused themselves because of prior work on behalf of terrorist detainees.

Holder stonewalled for nearly three months. Finally, two weeks ago, he admitted that nine political appointees in the Justice Department had represented or advocated for terrorist detainees, but he failed to identify seven whose names were not publicly known or to directly answer other questions the senators posed. So Keep America Safe, a group headed by Liz Cheney, posted a Web ad demanding that Holder identify the "al-Qaeda seven," and a subsequent Fox News investigation unearthed the names. Only under this public pressure did the Justice Department confirm their identities -- but Holder still refuses to disclose their roles in detention policy.

Americans have a right to this information. One lawyer in the national security division of Holder's Justice Department, Jennifer Daskal, has written that any terrorist not charged with a crime "should be released from Guantanamo's system of indefinite detention" even though "at least some of these men may . . . join the battlefield to fight U.S. soldiers and our allies another day." Should a lawyer who advocates setting terrorists free, knowing they may go on to kill Americans, have any role in setting U.S. detention policy? My hunch is that most Americans would say no.

Do other lawyers in question hold similarly radical and dangerous views? Without the information Holder is withholding, we cannot know if such lawyers are affecting detainee policy.

Yet for raising questions, Cheney and the Republican senators have been vilified. Former Clinton Justice Department official Walter Dellinger decried on this page the "shameful" personal attacks on "these fine lawyers," while numerous commentators leveled charges of "McCarthyism."

Where was the moral outrage when fine lawyers like John Yoo, Jay Bybee, David Addington, Jim Haynes, Steve Bradbury and others came under vicious personal attack? Their critics did not demand transparency; they demanded heads. They called these individuals "war criminals" and sought to have them fired, disbarred, impeached and even jailed. Where were the defenders of the "al-Qaeda seven" when a Spanish judge tried to indict the "Bush six"? Philippe Sands, author of the "Torture Team," crowed: "This is the end of these people's professional reputations!" I don't recall anyone accusing him of "shameful" personal attacks.

The standard today seems to be that you can say or do anything when it comes to the Bush lawyers who defended America against terrorists. But if you publish an Internet ad or ask legitimate questions about Obama administration lawyers who defended America's terrorist enemies, you are engaged in a McCarthyite witch hunt.

Some defenders say al-Qaeda lawyers are simply following a great American tradition, in which everyone gets a lawyer and their day in court. Not so, says Andy McCarthy, the former assistant U.S. attorney who put Omar Abdel Rahman, the "blind sheik," behind bars for the 1993 World Trade Center bombing. "We need to be clear about what the American tradition is," McCarthy told me. "The Sixth Amendment guarantees the accused -- that means somebody who has been indicted or otherwise charged with a crime -- a right to counsel. But that right only exists if you are accused, which means you are someone who the government has brought into the civilian criminal justice system." The habeas lawyers were not doing their constitutional duty to defend unpopular criminal defendants. They were using the federal courts as a tool to undermine our military's ability to keep dangerous enemy combatants off the battlefield in a time of war.

If lawyers who once sought to free captured terrorists are now setting U.S. policy when it comes to the release of Guantanamo detainees, moving terrorists to the United States, trying senior al-Qaeda leaders in civilian courts, and whether to give captured terrorists Miranda rights, then, as Sen. Chuck Grassley (R-Iowa) put it, the public has "a right to know who advises the attorney general and the president on these critical matters." Only when this information is public can members of Congress judge whether these individuals have properly recused themselves or whether they should be involved in detainee matters at all. The charge of McCarthyism is intended to intimidate those raising legitimate questions into silence. But asking such questions is not McCarthyism. It's oversight.

Marc A. Thiessen, the author of "Courting Disaster," writes a weekly column for The Post.


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