Andy McCarthy is still desperately trying to justify his smears of Justice Department lawyers who did work on behalf of accused terror detainees in the face of a conservative backlash:
It is absurd for critics of Keep America Safe to proclaim an American legal tradition of representing alien enemy combatants. There is none. To mask this inconvenient fact, critics speak in gobbledygook about representing "pariahs" or "the unpopular." Our actual tradition is to represent accused defendants, no matter how unsavory. The al-Qaeda detainees at issue are not accused defendants. They are plaintiffs filing offensive lawsuits (habeas corpus claims) against the American people during wartime. Unpopular American inmates must represent themselves in such suits because there is no right to counsel.
The relevant American tradition is that victory in war is our highest national imperative. Therefore, all citizens — including lawyers — are obliged to help defeat the enemy, not aid the enemy. And there is no doubt that these enemy lawsuits harm the war effort.
This is an Orwellian argument. McCarthy argues that because the U.S. has not accused people it is holding on suspicion of being terrorists of crimes, it can hold them forever. There is a historical precedent for people captured in theaters of war being held until the end of hostilities, but this isn't the same kind of thing. Al-Qaeda terrorists don't wear uniforms, and membership in the organization isn't always easy to define -- so, determining who is and is not an enemy combatant is paramount to the war effort. In this sense, the attorneys who represent detainees in habeas cases are assisting in that process. In fact, given that the vast majority of the people at Guantanamo have been released without charge, it's fair to say that most of the people we've captured aren't "enemy combatants" at all, but we'll come back to why McCarthy thinks otherwise.
At any rate, the idea that the government should be able to imprison people forever on suspicion of a crime is anti-democratic on its face. It's also alarming the degree to which some conservatives accept it as long as it's applied to "those people."
McCarthy brings up another straw man:
The Supreme Court recognized as much in the 1950 Eisentrager case, involving Nazi enemy combatants captured overseas conducting offensive operations against the U.S. They sought to challenge their detention and trial by military commission. In rejecting their claim, the justices explained that "(i)t would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home."
The Supreme Court overruled this precedent in Rasul v. Bush. The Eisenstrager case revolved around whether or not the U.S. courts had jurisdiction over a foreign prison run by the U.S, but this was in the aftermath of a traditional war between uniformed state actors -- nothing like the one the U.S. is fighting now. The point is moot, and it's really irritating how often conservatives talk up the "uniqueness" of the fight against al-Qaeda while invoking legal precedents from traditional wars. One of the "unique" aspects of this war is the difficulty involved in determining who is actually the enemy, and if McCarthy had his way anyone merely accused of being a terrorist could simply be imprisoned forever, with no legal recourse. That's an indefensible position.
Yes, America's left-wing legal profession has convinced the liberal bloc of a sharply divided Supreme Court to permit such suits. That doesn't make them any less harmful, nor did it vest the detainees with a right to counsel.
Only McCarthy is disputing the right of Guantanamo detainees' right to counsel. The Supreme Court has affirmed this over and over and over. They have it if they're charged in civilian court. They have it if they're charged in military commissions. They have the right to counsel in order to challenge their detention.
The logical extension of McCarthy's argument here of course, is that the Supreme Court is "hurting the war effort" and that what he calls the "liberal bloc" of the court, which in Rasul actually included two Republican appointees (not counting David Souter), is working on behalf of the enemy. The fact that McCarthy has not yet accused these Justices of being traitors indicates that he may yet retain some small sense of shame.
The Justice Department lawyers who represented al-Qaeda were volunteers. Of all the causes to which they could have donated their services, they chose our enemies. They are no doubt sincere in claiming they sought to vindicate principles, not terrorists. But the other stubborn fact is that, since they took the helm at Justice, counterterrorism policy has become much more terrorist friendly.
Again, this rests on the Orwellian argument that anyone accused of being a terrorist is by definition guilty, and most of the people whom the U.S. imprisoned at Guantanamo Bay were released without charge. The point of the habeas process is to determine whether the government has caused to believe someone is an enemy. This process is no more "terrorist friendly" than trials in general are "criminal friendly" because they consider the actual question of guilt.
Beyond the question of whether detainees in question are actually terrorists, it's hard to see how one would describe counterterrorism policy as being more "terrorist friendly," and McCarthy offers no examples. Detainee policy in the Obama administration is almost indistinguishable from the policy of the Bush administration post-2006, with the exception of the use of torture and more effective review boards. The administration has increased the use of legally questionable drone strikes.
I said I'd get back to the question of McCarthy's definition of "enemy," and it's pretty simple. All or most Muslims are collectively guilty, all or most secretly desire to kill Americans. This is a fundamental "clash of civilizations" in which either Islam or the West will emerge victorious, and the other will be destroyed. Consider this from a post McCarthy wrote about Afghanistan in October:
This reflects a central truth about Islam: the unity of the umma, the global Muslim Nation, takes precedence over all. A U.S. strategy built on the premise that mainstream Muslims will be won over to our side against their fellow Muslims in an Islamic country is built on wishful thinking. It's not a question of whether Muslims reject the takfiris' extremism. Muslims constantly fight amongst themselves, often with deadly force. The question is whether such infighting means they will prefer us. They won't — certainly not on a mass scale.
[...]
There was bitter condemnation of al Qaeda in the Islamic world in 1998 after the U.S. embassy bombings in Kenya and Tanzania. Yet, after 9/11, there was dancing in the streets. The explanation is simple: Over 90 percent of those killed in the embassy bombings were Muslims; by contrast, almost all of the nearly 3,000 killed on 9/11 were Americans, and the devastated city was New York, not Nairobi. Muslims have lots of complaints about Muslim terrorists, but the thought that this means they'll be coming over to our side is a fantasy.
Understand, this is why McCarthy refuses to acknowledge the reality that most of the people we have captured on suspicion of terrorism are not actually America's enemies. Because most Muslims are enemies by definition, the lines of war have been drawn by circumstances of birth and culture. So it doesn't matter whether an individual Muslim has attacked the United States -- their faith is their uniform, their adherence to it an act of war against the West. This is, of course, very similar to al-Qaeda's own view.
McCarthy's smears of Justice Department lawyers as terrorist sympathizers are merely a tribalist assault on the Constitution masquerading as patriotism.
-- A. Serwer
