Gavel Grab

A rare headline can capture a firestorm in fewer than 10 words. That has happened at the New York Times, with this powerful headline about an offensive that threatens constitutional rights: “Are You or Have You Ever Been a Lawyer?”

Some conservative critics including Liz Cheney, daughter of former Vice President Dick Cheney, are attacking lawyers working at the Justice Department who in private practice had represented or advocated for detainees held at the Guantanamo Bay military prison.

This debate has heated up quickly from a simmer to a full boil, and the Times editorial delivers a forceful response, replete with allusions to the McCarthy era and a defense of lawyers doing their duty in a democracy:

“It is not nearly enough to say that these lawyers did nothing wrong. In fact, they upheld the highest standards of their profession and advanced the cause of democratic justice. The Justice Department is right to stand up to this ugly bullying.”

When Liz Cheney mentioned lawyers who “voluntarily represented terrorists,” she included in the latter category Osama bin Laden’s driver, Salim Ahmed Hamdan. She neglected to mention, according to the Times, that the Supreme Court ultimately ruled in favor of Hamdan’s claim that the system of military commissions  used to try detainees like him was illegal. The Times editorial concludes:

“If lawyers who take on controversial causes are demonized with impunity, it will be difficult for unpopular people to get legal representation — and constitutional rights that protect all Americans will be weakened. That is a high price to pay for scoring cheap political points.”

Another commentary that deserves reading comes from Eugene Robinson in the Washington Post. He highlights a letter from a group of conservative lawyers including former Bush legal luminaries that denounces the “shameful series of attacks” and underscores the right of access to counsel:

“It notes that whether terrorism suspects are tried in civilian or military courts, they will have access to counsel — and that Guantanamo inmates, even if they do not face formal charges, have a right to habeas corpus review of their detention. It is the federal courts — not defense lawyers — that have made all of this crystal clear.

“If Cheney and her group object, they should prepare a blanket denunciation of the federal judiciary. Or maybe what they really don’t like is that pesky old Constitution, with all its checks, balances and guarantees of due process. How inconvenient to live in a country that respects the rule of law.”

The Post also features a commentary by Marc A. Thiessen from the other side. “The charge of McCarthyism is intended to intimidate those raising legitimate questions into silence,” he writes. “But asking such questions is not McCarthyism. It’s oversight.”

American Bar Association President Carolyn Lamm recently defended Justice Department attorneys who were assailed in a video by the conservative group Keep America Safe, headed by Liz Cheney.

According to The Blog of Legal Times, Lamm declared, “Individuals and organizations conducting a witch hunt in order to name names of Department of Justice lawyers who earlier represented Guantanamo detainees are showing a profound disregard for a fundamental tenet of our justice system and our Constitution: that anyone who faces loss of liberty has a right to legal counsel.”

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