THE CASE FOR FULL DISCLOSURE: MUSTREAD
The Wall Street Journal
THE SATURDAY ESSAY
MARCH 13, 2010
http://online.wsj.com/article/SB10001424052748704131404575117613313731980.html?KEYWORDS=mccarthy+holder
The Case for Full Disclosure
Advocating for the enemy is a modern anomaly. Andrew C. McCarthy on why Americans have the right to know what positions government lawyers have taken.
By ANDREW C. McCARTHY
While Attorney General Eric Holder was in private practice, he had signed an amicus brief in the controversial District of Columbia v. Heller case, in which the Supreme Court invalidated the District of Columbia’s ban on firearms in 2008. Mr. Holder had supported the ban.
When Mr. Holder was nominated to lead the Obama Justice Department, letters of support and opposition poured into the Senate from law-enforcement groups and gun-rights advocates, respectively. The commentariat, including several Holder admirers from the Republican establishment, debated his argument that the Constitution guaranteed only a “collective” right to gun ownership, not an individual one. At his confirmation hearing, senators closely questioned Mr. Holder on the views espoused in the brief, gauging whether, as attorney general, he’d be able to follow the contrary Heller ruling.
Opinions varied about what Mr. Holder’s amicus brief portended for firearms enforcement policy. Everyone, however, agreed on one point: The brief was highly relevant. Mr. Holder, after all, was a volunteer. He did not participate in the Heller litigation because he had to, but because he wanted to. There are countless causes that an attorney, looking to donate his skills, can support. When he chooses one, it matters. It very likely indicates the direction in which he’d like to take the law.
Until a couple of weeks ago, this was not a controversial proposition. It is now because of a television ad aired by a conservative group, Keep America Safe. The spot pressured the Obama administration, which has famously promised unprecedented transparency, to disclose the names of seven Justice Department political appointees who, while in private practice, voluntarily represented detainees at Guantanamo Bay. The Justice Department had stonewalled Republican lawmakers on this information for months. Then the Keep America Safe ad riveted public attention with the succinct but explosive question: “Who are the al Qaeda Seven?”
The Department of Justice folded, providing the names to the media. But the Obama administration also drummed up support from the legal profession’s leading lights. Twenty-two of them, including Kenneth Starr and other well-respected Republican lawyers, fired off a letter denouncing the ad as “shameful.” The Gitmo lawyers now working at the DOJ had acted in the “American tradition of zealous representation of unpopular clients,” the letter intoned. It even claimed that taking up the terrorists’ cause was comparable to John Adams’s defense of British soldiers prosecuted for the Boston Massacre. The left-leaning press chimed in, directing its wrath at a favorite target, the word “Cheney”—in this case, Liz Cheney, daughter of former Vice President Dick Cheney and co-director of Keep America Safe. The ad was portrayed as a right-wing smear of attorneys who had performed an honorable service, an assertion said to be proved by the fact that Gitmo lawyers had prevailed in some important Supreme Court cases.
The fictional premise of these wayward complaints is that the Justice Department’s al Qaeda lawyers stand in the same shoes as criminal-defense lawyers. The latter must represent even unsavory characters because the Constitution guarantees counsel to those charged with crimes.
To the contrary, the Justice Department’s al Qaeda lawyers were volunteers, just as Mr. Holder volunteered in the Heller case. Unlike the British soldiers represented by John Adams, the Gitmo detainees are not entitled to counsel. They are not criminal defendants. They are plaintiffs in offensive lawsuits, filed under the rubric of habeas corpus, challenging their detention as war prisoners. The nation is at war, and the detainees are unprivileged alien enemy combatants. By contrast, the United States was not at war with England at the time of the Boston Massacre, and the British soldiers were lawful police, not nonuniformed terrorists.
There is no right to counsel in habeas corpus cases. Thousands of American inmates must represent themselves in such suits—there is no parade of white-shoe law firms at their beck and call. Until 2004, moreover, enemy prisoners were not permitted to challenge their detention at all. The Supreme Court rejected such claims in the 1950 Eisentrager case, precisely because they damage the national war effort. Yes, left-leaning lawyers have convinced the Supreme Court’s liberal bloc to ignore precedent and permit Gitmo habeas petitions. That neither makes these suits less damaging, nor endows the enemy with a right to counsel.
Advocating for the enemy is a modern anomaly, not a proud tradition. Defense lawyers representing accused criminals perform a constitutionally required function. Not so the Department of Justice’s Gitmo volunteers. They represented al Qaeda operatives because they wanted to, not because they had to. The suggestion that they served a vital constitutional function is self-adulating myth. Their motive was to move the law in a particular direction.
It emerged this week that Heller was not Mr. Holder’s only amicus brief. He also filed one on behalf of al Qaeda terrorist Jose Padilla, an enemy combatant detained for plotting a post-9/11 “second-wave” of mass-murder attacks. Mr. Holder failed to disclose the brief at the time of his confirmation hearing. It is easy to see why he may have preferred to forget it. The brief advocated a return to the pre-9/11 approach of regarding al Qaeda as a cabal of criminals to be prosecuted, not enemies to be vanquished militarily. Unsurprisingly, this is exactly the policy he has since implemented as attorney general, in conjunction with the Department of Justice’s other former detainee lawyers.
The Keep America Safe ad did not call for anyone to be fired or suggest that representing America’s enemies rendered lawyers ineligible to serve in the Justice Department. Instead, it made the common-sense point that when attorneys volunteer to participate in cases, particularly where there is no requirement of representation by counsel, that choice likely reflects their policy preferences.
The American people are obviously entitled to know what lawyers are making national security policy, what positions they have previously taken, and whether those positions conflict with their current duties. As it was with the Second Amendment, so it is with terrorism. Critics from the left and right will draw competing inferences, but it is specious to suggest that the information is irrelevant.
Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the National Review Institute.
Printed in The Wall Street Journal, page W1
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