Opposing view: ‘No right to counsel’

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.

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.”

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.

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.

Keep America Safe is not trying to destroy or disqualify Justice's al-Qaeda lawyers, as the Obama Justice Department has tried to do to Bush lawyers. The group sought accountability from the self-proclaimed “most transparent administration in history.” What is shameful is that that should be controversial.

Keep America Safe declined the opportunity to provide an opposing view. Andrew C. McCarthy, a senior fellow at the National Review Institute, wrote at the group's request.