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Liz Cheney: Guilty 'til Proven Innocent

In this May 14, 2009 file photo, reviewed by the U.S. military, Guantanamo detainees pray before dawn near a fence of razor-wire, inside the Camp 4 detention facility at Guantanamo Bay Naval Base, Cuba. After six years in Guantanamo and one year in an Afghan jail, Abdul Qayyum went right back to where he started, fighting for the Taliban, two Afghan officials say.In this May 14, 2009 file photo, reviewed by the U.S. military, Guantanamo detainees pray before dawn near a fence of razor-wire, inside the Camp 4 detention facility at Guantanamo Bay Naval Base, Cuba. After six years in Guantanamo and one year in an Afghan jail, Abdul Qayyum went right back to where he started, fighting for the Taliban, two Afghan officials say.
AP Photo/Brennan Linsley, File
Jonathan Chait is a senior editor at The New Republic.
Earlier this month,the conservative organization Keep America Safe launched a PR fusillade against Department of Justice (DOJ) attorneys who represented Guantánamo detainees. "The crux of the matter," says Liz Cheney, chair of the organization, "is the American people have a right to know whether lawyers who used to represent and advocate on behalf of terrorists" are working at DOJ. They just want to know who the terrorist lawyers are. An innocent question, to be sure.

Bill Kristol, a board member for Keep America Safe, chimes in that another question is "whether former pro bono lawyers for terrorists should be working on detainee policy for the Justice Department." Perhaps the terrorist lawyers should have more harmless roles--say, advocating for low-income tenants over at HUD.

The important claim here is not the stated argument that terrorist lawyers should be publicly revealed, or that they shouldn't be working for the DOJ.

It's the assumption that they are representing terrorists. The assumption permeates conservative rhetoric on issues of torture and detainee rights. Consider some brief passages from a recent column by former Bush speechwriter Marc Thiessen:

"Unless they have been charged before military commissions or civilian courts, the al-Qaeda terrorists held at Guantánamo do not have a right to counsel under the Sixth Amendment. They are not accused criminals. They are enemy combatants held in a war authorized by Congress. ... Yet thanks to the habeas campaign, al-Qaeda terrorists who violate the laws of war now enjoy all these privileges. ... [The DOJ lawyers] have reached outside the judicial system and dragged the terrorists in. ... The same is true if they choose to devote their time to freeing America's terrorist enemies from lawful confinement under the laws of war" [emphasis added].

Thiessen makes explicit the position that the rhetoric about "terrorist lawyers" is meant to imply--namely, that terrorists should not have lawyers at all. The conclusion flows naturally when you begin by defining the defendants as "terrorists." The truth, though, is that a good number of these "terrorists" are not terrorists at all. One CIA intelligence analyst well-versed in Islamic extremism who interviewed detainees at Guantánamo determined that one-third had no connection to terrorism at all. A subsequent study by Seton Hall University Law School found that over half of the detainees were not determined to have committed any hostile act against the United States, and only 8 percent were characterized as Al Qaeda fighters.

The vast majority of the detainees were turned in not by U.S. forces but by Pakistani or Afghan locals, many of whom received financial bounties. And some of the detainees were hardly caught red-handed on the battlefield. The process for screening detainees was "horrible," a former Pentagon official told McClatchy newspapers. "'Captured with weapon near the Pakistan border?' Are you kidding me?" This, of course, is why lawyers were needed in the first place.