Rationalizing Repression

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Wondering at the disdain for fundamental American freedoms reflected in the Cheney-Kristol smear campaign against lawyers who represented Guantanamo detainees, my fellow Atlantic correspondent Mickey Edwards notes that they "attack lawyers because they represented men accused -- not convicted, not even charged -- of being enemies of the American people."  But according to former federal prosecutor Andrew McCarthy, the government's failure to charge and try detainees is precisely why lawyers (who love America) should decline to represent them:  "Unlike the British soldiers represented by John Adams, the Gitmo detainees are not entitled to counsel.  They are not criminal defendants," McCarthy explains, in The Wall Street Journal.  "They are plaintiffs in offensive lawsuits, filed under the rubric of habeas corpus, challenging their detention as war prisoners."

This is the logic of dictators: to finesse checks on executive power, imprison people first and charge them never.  McCarthy would deny legal representation to those who need it most: people imprisoned (or disappeared) by military or national security operatives without a semblance of due process.  He does not entertain the possibility that some may be wrongly suspected of terrorism and summarily imprisoned:  "The detainees are unprivileged, alien enemy combatants," he declares, without regard for facts or even ambiguities. The Uighurs, for example, are not enemy combatants, the Bush administration conceded, but they have been imprisoned at Guantanamo since 2002 anyway.

An American who loved freedom would be troubled by the inability of lawyers representing the Uighurs to secure their release despite their non-combatant status; but McCarthy considers them jihadists and, in any case, he seems a lot less concerned about imprisoning innocent people than enabling exposure of wrongful imprisonments.  He's angry at lawyers who fought for judicial review of summary detainments, suggesting that they share their client's "policy preferences" (McCarthy seems unable to imagine unbiased loyalty to a vision of individual rights that he derides).  He's angry at the Supreme Court's "liberal bloc" for recognizing that detainees have habeas rights to challenge their detention and that the executive branch does not enjoy the unilateral power to imprison people summarily and indefinitely without demonstrating that any of them are guilty of anything.

Who are the members of this presumptively un-American "liberal bloc" on the Court?  Guess who wrote this in a case involving the rights of a designated enemy combatant: "The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive."  Which liberal patsy wrote this?  Justice Scalia.  

" 'Of great importance to the public is the preservation of this personal liberty,' "Scalia stressed, quoting Blackstone:  "for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper ... there would soon be an end of all other rights and immunities. ... To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.' "

Scalia wrote this defense of habeas in Hamdi v Rumsfied, a case filed on behalf of Yasir Hamdi, an American citizen captured in Afghanistan and initially held at Guantanamo.  Scalia noted that Congress could suspend the writ of habeas corpus, but it had not done so (and he dissented from the plurality opinion that afforded some due process rights to Hamdi within more modest limits on presidential power).  Scalia did not extend similar rights to non-citizens; he strongly dissented in Hamdan v Rumsfield, a petition by a non-citizen challenging the military commissions.  Here the "liberal bloc" ruling in favor of Hamdan included Justice Kennedy, a conservative with some civil libertarian sympathies.  (That a libertarian streak qualifies a conservative as liberal is another idiocy of current political discourse.)  Hamdan, Bin Laden's driver, was eventually tried by a military commission, acquitted of a conspiracy charge, convicted of providing material support to terrorism, credited for time served, and received "what amounted to a four-month sentence by a military jury."
 
Whether or not Cheney, McCarthy and company suspect Hamdan's jury of including Al Queda sympathizers, they're probably not going to mount a politically inexpedient attack on the military.  Joe McCarthy was brought down partly by his investigation of the army; his media savvy (and Fox News assisted) political heirs seem unlikely to elevate any obsessions, or ideals (even bad ones) over politics.  (They smear lawyers who argued for detainee habeas rights as terrorist sympathizers, but McCarthy denounces the Justices who decided their rights as "liberals," not the "Al Queda 5.")  They prefer a government of men, or women, to a government of law, which means that power is their categorical imperative.  What won't they do to get it back?  What would they do to keep it?

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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