Who's really making America less safe?

First, let's get my bias out of the way. No, it's not that I am a lawyer, although I am. No, my bias is that, foolishly, I really do believe in the Constitution that forms the framework of our American government. And I really believe that when the Framers added those first ten amendments (the Bill of Rights, as we like to call them), they did so with the intention that those amendments actually apply.

So I've been following this Liz Cheney attack ad controversy with some interest over the last few days. If you haven't heard, Ms. Cheney and her group, Keep America Safe, have put together an ad that refers to certain lawyers in the U.S. Department of Justice as the "Al Quaida 7" because those lawyers have represented some detainees at Guantanomo, Cuba. The group has criticized DOJ for not releasing a list of those seven lawyers, although the names of the lawyers are available by doing a basic Google (shameless corporate promotion alert!) search.

Cheney and her ilk have taken the position that only U.S. citizens are entitled to be represented by an attorney when accused of crimes. Of course, that's not what the Sixth Amendment actually says. Read it for yourself:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. (Emphasis added.)

Ah, you say, but these people haven't officially been charged with a crime, as if being accused by the U.S. government of being an "enemy combatant" and imprisoned indefinitely doesn't amount to being accused of and punished for a crime. Perhaps anticipating such situations, the Founding Fathers embraced the legal concept of habeas corpus, which allows a person to challenge any detention by government authorities, and they specifically forbid Congress in Article 1, Section 9 of the Constitution from suspending the right to apply for a writ of habeas corpus except in cases of rebellion or invasion.

And finally, the U.S. Supreme Court has ruled that enemy combatants have a right to petition for a writ of habeas corpus. So it's really not surprising that lawyers have been involved in this process where many people imprisoned in Guantanomo have successfully challenged their detention. In other words, many of the people being held in Guantanomo as "enemy combatants" are nothing of the sort, are actually innocent, and are trying to get released from custody.

But Liz Cheney hasn't let any of these facts get in the way of her attack on these DOJ lawyers. She has publicly accused these lawyers of disloyalty and believes that there ought to be "loyalty oath" for lawyers working for the government.

As a lawyer, I am deeply offended; that much is obvious. Only the most obtuse among us would believe that a lawyer representing a client necessarily shares the views, beliefs, and values of his client. I expect better from someone like Liz Cheney, who graduated from the University of Chicago Law School in 1996. I've represented people charged with killing a person, stealing their grandma's safe, snatching an elderly woman's purse, raping their girlfriend's daughter, beating up their girlfriend, selling cocaine, hiring prostitutes for sex, and other acts too awful to mention. Does this mean I support these activities? No, no, and hell, no. But I'll tell you what it does mean: It means I believe in the justice system of this country, and the last time I checked, the government is required to prove people are guilty of crimes before being able to lock them away, sometimes for the rest of their lives.

This is not just my opinion, but also that of some pretty smart guys by the names of Washington, Adams, Jefferson, Madison, and those other guys you should remember from high school civics class. That puts me in pretty good company on that account. And when you start demonizing lawyers for insisting that the government follow the law, then you're the one making America less safe - for everyone.






See this excellent post from Slate.com for more.