There’s been a lot of attention this week paid to a recent video released by Keep America Safe, a group led by (among others) Liz Cheney.  The video attacks lawyers at the Justice Department who (prior to their time at Justice) volunteered to represent Guantanamo detainees.  The video questions the “loyalties” of the lawyers, who have been branded the “Al Qaeda 7.”

I’ve been encouraged by the number of folks (liberal and conservative) who have come to the defense of these lawyers.   Sadly, however, there are still those who essentially argue that the lawyers are guilty of treason.  Take, for example, the views of Andrew McCarthy, a National Review editor (of course) and former federal prosecutor:

Here is the legal profession’s message for the American people: “We’re just more important than you are.” Members of any other profession or institution would be indicted for coming to the enemy’s aid during wartime. Lawyers not only demand immunity from the ordinary duties of citizenship, but they insist that you admire them, or, at the very least, regard them as above criticism for volunteering their services to those trying to kill Americans.

McCarthy contends that enemy combatants have no right to a lawyer — so pro bono lawyers are essentially going out of their way to provide comfort that is not required by the Constitution.  But even assuming McCarthy’s premise is correct, when did the Constitution become the limit to human compassion?  And why is the aid given by lawyers any different than the “aid” given by chaplains, nurses, cooks, and other “care” providers at Gitmo?

McCarthy tries to distinguish this aid by arguing lawyers “assist[] the enemy in lawsuits against the American people during wartime.”  That necessarily assumes that long-term internment with no defensible legal justification is in the “American people’s” interest.   We need defense of enemy combatants for the same reasons that we need defense of the more common criminal — that defense is the only obvious way to restrain an overly aggressive government.

Even some defenders of the “Al Qaeda 7″ seem to ignore that such a check is necessary in every circumstance.  Stephen Gillers of NYU Law tries to distinguish what he perceives as acceptable forms of lawyer representation (e.g., representing detainees) from unacceptable representation:

I would criticize a law firm that chose to work for South Africa during apartheid and helped the regime stay in power. And I would criticize a lawyer who helped a drug company export to an impoverished nation products banned as unsafe in the United States.

But doesn’t the drug company need a defense, too?  Lacking that defense, how do the facts of its malfeasance get challenged, tested, and then publicized?  As an empirical-ist, I believe that something can only be true when it is tested and challenged (through experimentation or trial).  Without the opposing view (drug company good), we can never test the view held by Gillers (drug company bad).   The same is true in the terrorist context, as noted by one astute commenter at the NY Times:

I want accused terrorists and accused war criminals to have attorneys. How else will I be sure (at least more sure) that the true culprits have been apprehended and the government is not railroading someone while they try to hide the evidence of the truly guilty.

It would be nice if we could assume infallibility in our government, and trust that the right people are in Gitmo.  If we had that, I might agree that there is no requirement for lawyers.   Lacking that infallibility, we need the crucible of a counsel-based system.

-Michael

Update: The always awesome Orin Kerr agrees.