October 31, 2004 | National Review Online

Doing the Department Injustice

The Times Takes A(nother) Hit at the DOJ

This morning’s New York Times has a characteristically infuriating article, which suggests–by giving prominence to arguments being made by champions and lawyers for enemy combatants–that Guantánamo detainees have a right to counsel, and that the Justice Department is denying it by making arguments that the Supreme Court already rejected last June.

This is simply wrong.

The issue before the Supreme Court was not right to counsel. It was whether the foreign detainees had a right, under federal law, to have their habeas claims heard in federal court. While the court regrettably found this right, it hardly means that a right to counsel went with it. Even for U.S. citizens, there is no constitutional right to counsel in habeas proceedings. The Sixth Amendment guarantees a criminal defendant the right to counsel in the criminal case against him. Habeas corpus is a civil action in which the prisoner who files a habeas petition is actually the plaintiff — he does not stand before the court as an “accused.” Thus, the thousands of U.S. citizens who file habeas claims every year generally proceed without counsel.

It is, moreover, not surprising that the Justice Department should be repeating some of its arguments — those arguments were, after all, successful. That is to say, the detainees argued before the Supreme Court that the U.S. Constitution required that the foreign detainees be permitted to challenge their detention in federal court. The Supreme Court rejected that argument. While it did rule against the government on the ultimate issue of whether detainees had a right to challenge their detention, the Supremes reasoned that this right was found in the habeas statute, not in the Constitution. The detainees are now contending that the Constitution requires that they be given attorneys at public expense. Thus, it makes perfect sense that the DOJ should argue that the Constitution does not require counsel for the detainees, given that the Supreme Court has already found that the Constitution did not require the detainees to be heard in the first place.

Thus, while the Times is suggesting that the Justice Department is cynically stalling in the lower courts by making claims that the Supreme Court has already rejected, the opposite, in fact, is true. Counsel for the detainees, having already failed to persuade the Supreme Court that the Constitution avails them of rights, is nevertheless back again, making the same claims.

This doesn't mean federal judges do not have other means at their disposal to give detainees counsel (as a judge in the District of Columbia did in October). But it does mean that it is perfectly appropriate for the DOJ to be opposing a right to counsel for detainees, as well as other efforts to turn these unwarranted habeas proceedings into full-blown American trials.

— Andrew C. McCarthy, a former chief assistant U.S. attorney who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, is an NRO contributor.