The Gitmo Nine

ADAM SERWER |
March 3, 2010 | web only
http://prospect.org/cs/articles?article=the_new_mccarthyism

The "Gitmo Nine" aren't terrorists. They weren't
captured fighting for the Taliban. They've made no
attempts to kill Americans. They haven't declared war
on the United States, nor have they joined any group
that has. The Gitmo Nine are lawyers working in the
Department of Justice who fought the Bush
administration's treatment of suspected terrorists as
unconstitutional. Now, conservatives are portraying
them as agents of the enemy.

In the aftermath of September 11, the Bush
administration tried to set up a military-commissions
system to try suspected terrorists. The commissions
offered few due process rights, denied the accused
access to the evidence against them, and allowed the
admission of hearsay -- and even evidence gained
through coercion or abuse. The Bush administration also
sought to prevent detainees from challenging their
detention in court. Conservatives argued that the
nature of the war on terrorism justified the assertion
of greater executive power. In case after case, the
U.S. Supreme Court sided with the administration's
critics.

"These lawyers were advocating on behalf of our
Constitution and our laws. The detention policies of
the Bush administration were unconstitutional and
illegal, and no higher a legal authority than the
Supreme Court of the United States agreed," says Ken
Gude, a human-rights expert with the Center for
American Progress, of the recent assault on the Justice
Department. "The disgusting logic of these attacks is
that the Supreme Court is in league with al-Qaeda."

The attorneys who challenged the Bush administration's
national-security policies saw themselves as fulfilling
their legal obligations by fighting an unconstitutional
power grab. At heart, this was a disagreement over
process: Should people accused of terrorism be afforded
the same human rights and due process protections as
anyone else in American custody? But rather than
portray the dispute as a conflict over what is and
isn't within constitutional bounds, conservatives argue
that anyone who opposed the Bush administration's
policies is a traitor set to undermine America's safety
from within the Justice Department.

"Terrorist sympathizers," wrote National Review's
Andrew McCarthy in September, "have assumed positions
throughout the Obama administration."

Since Obama took office, the question of detention
procedure has been reintroduced and more deeply
politicized. The Bush-era military commissions turned
out to be woefully ineffectual and were widely seen as
skewed against the defendants. Yet they produced only
three convictions during the entire administration, in
part because the U.S. Supreme Court kept knocking them
down for failing to meet minimal due process standards.
Meanwhile, civilian courts tried more than a hundred
terrorism cases. But much to the disappointment of
human-rights advocates, the Obama administration, while
choosing to try the alleged September 11 plotters in
civilian court, has opted to continue many Bush-era
policies, including reformed military commissions.

Nevertheless, McCarthy, a former assistant U.S.
attorney, blamed the "al-Qaeda bar" -- the attorneys
who secured due process rights for detainees -- for
Bush-era setbacks. "The principal reason there were so
few military trials is the tireless campaign conducted
by leftist lawyers to derail military tribunals by
challenging them in the courts," McCarthy wrote in
November. "Many of those lawyers are now working for
the Obama Justice Department." In December, an unsigned
National Review editorial referred to the series of
"pro-terrorist" rulings by the courts that affirmed
rights for individuals accused of terrorism.

Justice Department lawyers aren't the only ones who
have represented accused terrorists. American military
personnel have as well, often successfully. Major Eric
Montalvo (retired), who acted as a defense counsel in
the Guantanamo Bay military commissions, said that the
accusation that lawyers who fought the Bush
administration's policies were "terrorist sympathizers"
was absurd. "That's not sympathy for a terrorist --
that's sympathy for the rule of law, the American way
of doing business."

Lt. Col. David Frakt, who has represented detainees
both in military and civilian courts, said that the
lawyers who secured due process rights for detainees
were ultimately vindicated. "There is an assumption
there that has proven to be a fallacy, which is that
everyone at Guantanamo was a terrorist," Frakt says,
pointing to the fact that the government has lost
three-quarters of the habeas petitions filed by
detainees at Guantanamo. "What we have seen over and
over and over is that the vast majority of detainees at
Guantanamo are innocent."

Even former military prosecutors have expressed views
similar to those of the Gitmo Nine. Col. Morris Davis
(retired) served as the former chief prosecutor for the
Guantanamo Bay military commissions and has since
argued that they should be abandoned. But initially,
when the commissions were formed, he volunteered to be
chief defense counsel. "I thought for the good of our
system, they needed zealous representation," says
Davis. He dismissed the charge that having represented
a detainee indicated "sympathy" for terrorist goals. "I
don't think that anyone, because they signed up to
represent a detainee means they've signed up with al-
Qaeda."

"[McCarthy] was a prosecutor for a number of years, so
he knows better than that," Davis adds. "I think he's
just saying it for the shock value of it."

McCarthy is no stranger to shock value -- he entertains
a number of fringe beliefs, including the possibility
that Barack Obama was not born in the United States and
that former Weather Underground member William Ayers
wrote the president's autobiography. Nonetheless,
because of his experience as a prosecutor in the trial
of Sheik Omar Abdel Rahman, the mastermind behind the
first World Trade Center bombing, McCarthy wields a
great deal of influence in conservative circles on
national-security matters. When Attorney General Eric
Holder testified in front of the Senate regarding his
decision to try Khalid Sheik Mohammed and the other
alleged 9/11 conspirators in civilian courts, Sen. John
Kyl read aloud from an op-ed McCarthy had published
just the day before, in which McCarthy alleges that
"leftist lawyers" actively sought to aid "America's
enemies."

Holder shrugged off the op-ed's insinuations: "I'm not
worried about McCarthy."

In the same hearing, Sen. Chuck Grassley demanded that
Holder identify the number of attorneys in the Justice
Department who had litigated on behalf of suspected
terrorist detainees, or at least offer a list of the
recusals. He argued that "this prior representation
creates a conflict-of-interest problem for these
individuals." Holder said he would consider Grassley's
request and assured him that "we're very sensitive to
that concern and mindful of it, and people who should
not participate in certain decisions do not do so."
Holder added that he had already recused himself
because his former law firm, Covington and Burling, had
been involved in detainee cases. Grassley subsequently
formalized his request in a letter to Holder, and
separately, the rest of the Republicans on the
Judiciary Committee wrote a joint letter to the Justice
Department demanding that Holder identify the attorneys
by name.

On Feb. 18, Assistant Attorney General Ronald Weisch
responded to Grassley's inquiries, saying, "Only five
of the lawyers who serve as political appointees in
those components represented detainees, and four others
either contributed to amicus briefs in detainee-related
cases or were otherwise involved in advocacy on behalf
of detainees." Weisch said that some lawyers had
recused themselves from specific cases. But he added
that it was common for lawyers in the Justice
Department, who go in and out of public practice, to
"make legal arguments on behalf of the United States
that are contrary to legal arguments they made
previously on behalf of a prior client in private
practice." Prosecutors become defense lawyers, and
vise-versa.

But it was too late for reasoning. By this point the
rest of the conservative media had begun taking up the
cause, referring to the lawyers Weisch had mentioned as
the Gitmo Nine. At the Washington Examiner, Byron York
accused Holder of "stonewalling" Congress. "Who are the
Gitmo 9?" McCarthy demanded to know from his perch at
National Review. Then, last Friday, Republicans
responded to Weisch, accusing the Justice Department of
being "at best nonresponsive and, at worst,
intentionally evasive." The Washington Times followed
up, echoing McCarthy's demand for the identities of the
so-called Gitmo Nine. By that point, two Justice
Department lawyers, Deputy Solicitor General Neal
Katyal and Human Rights Watch former senior counsel
Jennifer Daskal, had already been identified. Unlike
the Republican senators, whose concerns were centered
around "potential conflicts of interest," the Times
editorial argued that "the public has a right to know
if past work for terrorist detainees has biased too
many of Mr. Holder's top advisers." It was a delicate
way of suggesting that lawyers who were holding the
government to its constitutional obligations were in
fact, if not agents of, sympathetic to al-Qaeda.

On Tuesday, all attempts at subtlety were abandoned.
Keep America Safe, the conservative advocacy group
which was founded by Liz Cheney to defend torture and
oppose civilian trials for suspected terrorists and
which has close ties to McCarthy, turned the Gitmo Nine
into the "al-Qaeda Seven." The group put out a Web
video demanding that Holder name the other Justice
Department lawyers who had previously represented
terrorist detainees or worked on similar issues for
groups that opposed the Bush administration's near-
limitless assumption of executive power. "Whose values
do they share?" a voice asks ominously. "Americans have
a right to know the identity of the al-Qaeda Seven."
The ad echoed McCarthy's references to the "al-Qaeda
bar" from months earlier.

"This is exactly what Joe McCarthy did," said Gude.
"Not kind of like McCarthyism; this is exactly
McCarthyism."

The attorneys who secured greater due process rights
for detainees weren't attempting to prevent terrorists
from being punished -- they were attempting to prevent
the government from assuming limitless power to
imprison people indefinitely based on mere suspicion.
Not all of those fighting the Bush administration's
policies even believed that terrorists should be tried
in civilian courts. Katyal, who litigated the 2006
Hamdan v. Rumsfeld case in which the Supreme Court
decided in the detainees' favor, advocated for using
military courts martial -- and later, authored an op-ed
for The New York Times alongside former Bush lawyer
Jack Goldsmith arguing for a new "national security
court" to try terrorists. Still, Katyal held that
Bush's general policy for trying terrorists "closely
resemble those of King George III."

For human-rights advocates, there's something bitter
about conservatives targeting those attorneys who
worked to curtail the Bush administration's abuses of
power. Two weeks ago, the government released a long-
awaited Office of Professional Responsibility report
recommending professional sanctions for John Yoo and
Jay Bybee, two former lawyers in the Bush
administration's Office of Legal Counsel who gave the
green light for the use of torture in interrogations.
OPR's recommendations were overruled by David Margolis,
a high-ranking Justice Department official. Margolis
nevertheless acknowledged that Yoo and Bybee exercised
"poor judgment," and said that it was a "close
question" as to whether Yoo "intentionally or
recklessly provided misleading advice to his client."

Conservatives have since claimed that Yoo and Bybee
were "exonerated" by the report. Last week, at a Senate
Judiciary Committee hearing on the OPR report, Sen. Jon
Cornyn of Texas said that "the Department's decision in
this matter should once and for all put to rest any
notion that John Yoo, Jay Bybee, and their associates
deserve anything other than the thanks of a grateful
nation for their service."

"The right is treating the lawyers who came up with the
justification for torture as heroes, and the lawyers
like Katyal who helped restore the rule of law as
villains," says Frakt. "They've just got their heads
screwed on backwards."

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