In recent politically motivated attacks, conservative pundits and two Republican senators are accusing Obama administration attorneys – dubbed the “Gitmo 9” – of sympathizing with terrorists. The attacks against the attorneys are based on their previous representation of detainees before military commissions at Guantanamo Bay. The accusations are even aimed at Attorney General Holder because his old law firm assisted in the representation even though Holder did not participate in that representation directly.
Keep America Safe, an organization headed by former Vice President Cheney’s daughter Liz Cheney, created an ad that refers to seven of the attorneys as the “Al Qaeda 7" (another name conjured up to refer to these attorneys). In an especially tactless display, the website Investors.com ran an article about the “Gitmo 9” entitled “DOJ: Department of Jihad?”
Republican Senator Chuck Grassley also got in on the action as well saying that recent moves made by the Obama administration with respect to detainees were not “seriously thought through” and insinuated that it was the fault of these attorneys.. Spencer Ackerman, writer for the Washington Independent, points out that Grassley’s comments about these attorneys are particularly hypocritical because they defended detainees before military commissions which Senator Grassley helped start by voting to approve the Military Commissions Act of 2006. Those commissions explicitly required that detainees be provided with a defense. Senator Grassley is now impugning the people who worked within the system he helped to create.
Furthermore, it must be asked where the senator’s outrage was during the Bush years? Top attorneys during that administration dispensed legal advice authorizing torture, indefinite detention, and unrestrained electronic surveillance. All of that advice proved to be unconstitutional and undermined this country’s reputation.
It cannot be said that protecting the rights of those accused of crimes preludes a person from ardently pursuing justice. Before joining the Bush administration Jay Bybee, a top attorney at the Department of Justice, was a federal appellate judge. While on the bench Bybee wrote one opinion releasing a death row inmate because of the poor performance of the inmate’s attorney at trial. He also wrote another opinion throwing out charges against a man accused of downloading child pornography because he believed his Miranda rights were violated. These past pro-defendant decisions did not stop Bybee from aggressively (probably too much so) pursuing terrorists during his time with the Bush administration. It was Bybee who wrote the now infamous “torture memo” that professed to find a legal basis for torture in interrogation.
The sensational notion that current administration attorneys that provided a defense to detainees at Guantanamo Bay somehow makes them soft on terrorism or members of a “jihad,” is pure ignorance. These attacks are so extreme that many Republicans, including Ken Starr, Charles Stimson, and Jeff Sessions, are condeming them. These attorneys provided detainees with the rights that the Constitution, and recent legislative action, guaranteed them. The reason that this country recognizes those rights is not born out of a weak sense of justice, but rather out of a desire to protect individuals against the power of the collective.
Do not forget that not all of those who ended up at Gitmo were actually found to be enemies of the U.S. Over twenty members of a Chinese ethnic minority were held at Gitmo for seven years despite being found not to be enemy combatants. Most of them have now been released thanks to the efforts of the attorneys that represented them. Does that mean that some guilty detainees also receive legal representation? Of course, that is a natural consequence of democratic principles of justice, but it does not mean it is wrong. It is attorneys like the “Gitmo 9” that make the system work and keep it fair for everyone. They should be applauded, not vilified.