The torture wing of the GOP is a lot of things, but I don't think they're too dumb to understand how the American legal system works. Attorneys who defend rapists do not approve of rape, attorneys who defend murderers do not approve of murder. There's nothing sinister about believing the government should prove its case against those it accuses of crimes -- that kind of basic accountability is essential to a functioning democracy. As Thomas Paine said, "He that would make his own liberty secure, must guard even his enemy from oppression."
When it comes to Muslims accused of terrorism, the GOP has argued, essentially, that an accusation is indistinguishable from a conviction. Now, they're arguing that anyone who opposed Bush-era national security policies did so out of sympathy for terrorists rather than concern over due process. The logical conclusion of their argument is that the military lawyers who act as defense counsel to detainees in the military commissions are also traitors and should be court-martialed, but this argument is so self-evidently stupid that they aren't making it. Perhaps they secretly believe that an attorney in uniform would secretly understand that it's his or her duty to help engineer a conviction rather than represent their client. The contempt Republicans have shown for due process suggests the latter is an actual possibility, but I can tell you right now it isn't the case.
At any rate, I don't actually believe that these people really think the lawyers in the Justice Department who formerly worked on detainee issues were doing al-Qaeda's bidding. Part of this is sour grapes -- the GOP is angry that the same lawyers who wiped the floor with the Bush administration in one court case after another are now part of the Obama administration. It's also an attempt to rewrite history in the aftermath of the OPR report that originally recommended professional sanctions for John Yoo and Jay Bybee for their rubber-stamping of torture, before being whitewashed by David Margolis. The idea is to cast Yoo and Bybee as reluctant patriots who would do anything for their country -- and the lawyers who fought Bush administration era-abuses as traitors who want the terrorists to win. And yet I can't imagine a more vivid al-Qaeda victory than an America frightened out of adhering to its own Constitution.
The smear campaign against the so-called Gitmo Nine is a tactic, both for rescuing Yoo's and Bybee's reputations and for legitimizing the lawlessness of the past eight years. I'm not sure if it'll work, but neither the Democrats nor the administration have shown much stomach for defending the institutions that allow America to function as a democracy. Certainly nowhere near as much as the attorneys in the Justice Department who are currently being smeared as traitors.
As one former military-commissions prosecutor put it to me yesterday, "There is no higher calling in the law than to defend the rights of the unpopular, even the hated." Part of what makes it such a high calling is that those who curse your name will never understand that you're fighting for their rights as well.
-- A. Serwer
