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The Big Lie About Guantánamo Lawyers

Jonathan Hafetz,
Senior Staff Attorney,
ACLU Center for Democracy
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March 18, 2010

(Originally posted on Huffington Post.)

The recent attacks on lawyers who have worked on behalf of Guantánamo detainees have employed the tactic of the "Big Lie" — that is, a lie so colossal that people will believe it because no one could possibly have the impudence to distort the truth so grossly.

The Big Lie here is that ethical and courageous lawyers who defended the Constitution by taking on unpopular cases of Guantánamo detainees are somehow tainted by the accusations against their clients, and that this taint should prevent them from serving honorably in the Justice Department.

This Big Lie is not only false; it threatens the core principle of our democracy that those accused of misdeeds by our government are entitled to due process and a lawyer to represent them. To appreciate how fundamental this principle is, one need only imagine an America in which lawyers refused to represent clients because they might be associated with the actions or beliefs for which those clients are accused.

Like many Big Lies, this one is premised upon lots of other lies that make the Big Lie easier to swallow.

Let's start with the assumption that all detainees at Guantánamo are terrorists. The fact is that only a handful of the nearly 800 detainees held there since 2002 have ever been charged with a crime in any tribunal, civilian or military. The overwhelming majority — more than 500 — were released by the Bush administration, the same administration that had branded all Guantánamo detainees "the worst of the worst."

In fact, according to a Seton Hall law school study of government data, fewer than 10 percent of the detainees at Guantánamo were characterized as al Qaeda fighters, while 40 percent were not even alleged to have any connection with al Qaeda whatsoever. Many Guantánamo detainees were simply sold to the U.S. or Northern Alliance forces by bounty hunters eager to claim the reward money the United States was offering.

Yet, for eight years, the Bush administration defended holding Guantánamo detainees without access to habeas corpus — the basic right to challenge their confinement in court. Since federal judges started conducting those hearings in 2008, they have found that the detention was illegal in 33 of 44 cases. In other words, the government got it wrong about 75 percent of the time — and that number does not even include the hundreds of detainees released without charge by the Bush administration.

Of course, whether or not the government's accusations against a detainee turn out to be true, our system demands that the detainee have counsel both to protect his rights and to safeguard the integrity of the entire judicial process. But it's the broad brush of guilt with which all detainees have been painted that has made the Big Lie more saleable.

Then there's the lie that Guantánamo detainees did not have a right to a lawyer because they had not been charged with a crime but were instead being held as "combatants" in the "war on terror."

Take the assertion of former Bush speech writer (now Washington Post columnist) Marc Thiessen: "[Lawyers] were not doing their constitutional duty to defend unpopular criminal defendants. They were using the federal courts as a tool to undermine our military's ability to keep dangerous enemy combatants off the battlefield in time of war."

Thiessen's twisted logic reads like something out of Kafka. If the United States had charged the detainees with a crime under any of more than dozen federal anti-terrorism statutes, the detainees would have had a constitutional right to a lawyer. But by holding detainees in a legal black-hole as "enemy combatants," the United States could deliberately avoid triggering any of the Constitution's protections.

Further, this "new war" conveniently has no limits. As one Justice Department official told a federal judge during the Guantánamo detainee litigation, the president's detention power was so broad that he could imprison as an "enemy combatant" even a little old lady in Switzerland who gave money to a charity which, unbeknownst to her, was providing money to a terrorist organization.

Yet Thiessen and others, like National Review Institute fellow Andrew McCarthy, have the audacity to impugn lawyers — some of them uniformed military officers — for testing these legal claims in court on behalf of individuals facing potentially lifetime imprisonment without charge or trial. Their audacity is all the more shocking since their vision of unchecked and unreviewable executive detention power has now been rejected three times by the Supreme Court.

Finally, the timing of the recent slurs against detainee lawyers must also be considered, coming close on the heels of the release of a Justice Department report assessing the conduct of John Yoo and others who misused, subverted, and circumvented the law to facilitate the United States' torture and mistreatment of detainees in violation of criminal statutes and international legal obligations. We must not let the recent attacks divert our attention from what is, at minimum, a serious breach of legal ethics, or be tricked into thinking that "all these attacks on lawyers" are the same. This is another lie, one that preys upon the public's fear of terrorism and the misguided belief that Yoo and other torture lawyers were helping protecting the country while the Guantánamo lawyers were endangering it.

Nothing could be further from the truth. The illegal mistreatment and torture of prisoners has undermined not only our values, but our security as well. As Army Gen. David Petraeus noted, Guantánamo has become an importing recruiting tool for those who wish to do America harm. By contrast, upholding the rule of law helps keep us both safe and free.

The legal profession's representation of unpopular individuals has a long history in the United States. John Adams' defense of the British soldiers accused of carrying out the Boston Massacre is but one example. It is precisely cases involving accusations of the most heinous crimes that test our commitment to our values and legal principles. It is also in such cases that the protections that safeguard all individuals — such as due process and equal protection under law — can be most dangerously undermined.

It is encouraging to see that many, including some well-respected conservative scholars, have stood up to defend the detainee lawyers — have told the truth in the face of the Big Lie. But the lie, in its many forms, shows no signs of retreating any time soon. We must all remain vigilant and armed with the truth so we're prepared when the next one comes along.

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