August 3, 2011 | National Review Online
Bravely entering the lion’s den — delivering a speech in praise of left-wing, “pro bono” lawyering to a group of left-wing, pro bono lawyers — Attorney General Eric Holder recently declared that “lawyers who provide counsel for the unpopular are, and should be, treated as what they are: patriots.”
Sure they are. After all, Holder explained, they “reaffirm our nation’s most essential and enduring values” — like the value we place on coming to the aid of our enemies in wartime. And let’s not forget the value we place on advocating for the release of those enemies who, as night follows day, then return to the business of killing Americans. Sure, the nation somehow missed these essential and enduring values in the two-plus centuries between the Revolutionary War and the War on Terror, but hey, who’s counting?
The attorney general’s encomium was prompted by critics who had embarrassed him, finally, into disclosing at least some of the names of former Gitmo Bar members he recruited for policymaking jobs at DOJ. They “do not deserve to have their own values questioned,” he said of these lawyers. Just like many attorneys at Covington & Burling, Holder’s former firm (which made representing enemy combatants its biggest “pro bono” project), they answered the call of “our values” because, you know, the detainees are so very “unpopular” among the American legal profession.
Truth be told, what’s most unpopular in our elite legal circles is the Bush administration. Bush’s lawyers approved, and Bush’s executive agencies carried out, aggressive counterterrorism policies on interrogation, detention, and surveillance after some of the Gitmo Bar’s clients killed nearly 3,000 Americans. What about those unpopular lawyers and agents? For some reason, Covington & Burling and the other barrister battalions did not volunteer to represent them. And Holder wasn’t content merely to question their “values”; he accused them of war crimes.
FOR THE PUBLIC GOOD?
In reporting Holder’s remarks, the press defined “pro bono” as if it meant “voluntary.” Although the term describes no-fee legal work that lawyers do voluntarily, that is not what it means. “Pro bono” is short for pro bono publico, “for the public good.” That is, it is supposed to reflect the public’s values, not the profession’s. And the two are very much out of sync.
The attorney general’s pep rally occurred just as the public was getting its first glimpse of the peculiar notions of “representation” shared by several Gitmo Bar veterans. Thanks to dogged investigative work (here and here) by Debra Burlingame and Tom Joscelyn (of, respectively, Keep America Safe and the Foundation for Defense of Democracies), we now know a good deal about several of these volunteer lawyers. To take just a few examples, they provided al-Qaeda detainees with a brochure that instructed them on how to claim falsely that they had been tortured; fomented a detainee hunger strike that disrupted security and precipitated fabricated reports that prisoners had been tortured and force-fed; provided the detainees with other virulently anti-American propaganda (for example, informing them about the Abu Ghraib scandal, comparing U.S. military physicians to Josef Mengele, and labeling DOJ lawyers “desk torturers”); gave the enemy-combatant terrorists a hand-drawn map of Gitmo’s layout, including guard towers; helped the enemy combatants communicate messages to the outside world; informed the detainees of the identities of other detainees in U.S. custody; and posted photos of Guantanamo security badges on the Internet in a transparent effort to identify U.S. security personnel.
And that’s not the worst of it — not by a long shot. Bill Gertz of the Washington Times has uncovered the Gitmo Bar’s shocking effort to identify CIA interrogators. The lawyers — from the ACLU and the National Association of Criminal Defense Lawyers, perversely calling themselves “the John Adams Project” — actually had investigators stalk U.S. intelligence officers, surveilling them near their homes and photographing them with or near their loved ones. The photos were then smuggled into Gitmo and shown to top terrorists to determine whether they recognized which intelligence agents had questioned them.
Interestingly, the attorney general claimed that al-Qaeda’s volunteer lawyers deserve the public’s “respect” because they “accept our professional responsibility to protect the rule of law.” All of the above-described activities not only violated the law; they occurred in flagrant contravention of court-ordered conditions that were placed on the lawyers’ access to their “clients.” Evidently, violating statutes and contemptuously flouting court orders protects the rule of law in the same way that coming to the enemy’s aid exhibits patriotism. That’s “our values” for you.
PERVERTING THE RULE OF LAW
In any event, we’re already hearing the predictable rebuttal: There were no real crimes committed; if CIA agents were identified, it was due to the agency’s lax protective measures, which the lawyers merely exploited; and if the lawyers technically transgressed the court orders, then the orders were unduly restrictive of the attorney/client privilege. Here’s the problem for Holder: They’ve tried this before. Leftist movement attorney Lynne Stewart made similar arguments when she was indicted for helping Omar Abdel Rahman (the “Blind Sheikh”) run his terrorist organization from jail. She lost and was convicted.
Suddenly exposed, the “John Adams Project” is now claiming that identifying CIA agents so they could be called for trial testimony was legitimate litigation strategy. That’s ridiculous. There is a right way — a “rule of law” way — to go about securing the presence of government agents for court hearings, especially if there are classified-information concerns, as there are with CIA officers. A lawyer simply has to make a motion to the judge asking for the production of the agents based on a showing that their identification and testimony is material to the case. It is not done by stalking American agents. And if a lawyer claims that it is important to the case for his terrorist client to view documents or photographs, there’s a lawful way to do that, too. You go to the government or the court to ask permission first, again explaining why it is necessary. You don’t smuggle materials into a prison.
Like Lynne Stewart, all the Gitmo lawyers signed an agreement indicating their understanding of and acquiescence in the conditions of access to the detainees. If the lawyers believed those conditions were too restrictive to enable them to do their jobs, there was a very simple remedy: They could have made a motion to get the conditions modified. Clearly, the Gitmo Bar took matters into its own hands because the lawyers knew that what they were doing was outrageous. Imagine if they’d asked: “Judge, okay with you if we spy on the CIA, take some pictures, and get them into the prison so Khalid Sheikh Mohammed & Co. can look them over?” The lawyers would have been shot down in a heartbeat. They knew that, so instead they did it the sneaky way — ensuring that even if the photos never see the inside of an American courtroom, they would be available to other Gitmo lawyers (like those at the Center for Constitutional Rights) for the push to have foreign tribunals bring war-crimes cases against Bush-administration officials.
MR. HOLDER, ISN’T THIS MATERIAL SUPPORT TO TERRORISM?
During the Valerie Plame controversy, we were treated to lectures from the American Left over the dire need to protect CIA agents. That, coupled with the fact that Patrick Fitzgerald, who ran the Plame investigation, is now leading a probe of the Gitmo lawyers, has brought renewed attention to the Covert Agent Identity Protection Act, the statute at the center of the Plame case. While the possibility that this law was broken should certainly be considered, it is important to bear in mind that here, unlike the Plame situation, the context is terrorism. Thus another Lynne Stewart parallel is worth pondering — and worth asking Mr. Holder about when he testifies before the Senate Judiciary Committee next month.
Federal law prohibits providing material support to terrorists and terrorist organizations. Almost any assistance qualifies. The relevant statutes (sections 2339A and B of the federal penal code) exempt only “medicine and religious materials.” Though not stated in the statute, legitimate legal assistance must also be exempt — indicted terrorists are entitled to counsel. This was Stewart’s attempted defense. The jury, however, rejected the absurd contention that activities like helping the head of an international terrorist organization convey messages to his subordinates constituted “representation” by an attorney.
It would be interesting to know whether the attorney general thinks legitimate representation by counsel includes stalking the CIA, conspiring to identify covert agents and security personnel, inciting disruptions, providing terrorists with information in rampant violation of court orders, and the Gitmo Bar’s other outrages. Assuming Holder agrees that this is not the “rule of law” he had in mind, why would such activities not constitute material support to terrorists?
Moreover, the Espionage Act (section 793 of the penal code) prohibits the obtaining of information respecting the national defense with the intent that it be used to the injury of the United States. Specifically included, among many other examples of conduct criminalized under the statute, is the taking of photographs of “anything connected with the national defense.” Doesn’t Mr. Holder think snapping photos of CIA interrogators involves photographing something connected with our national defense? Doesn’t the unauthorized display of such photos to mass murderers at war with our country bespeak an intention to harm the United States?
Certainly the CIA believes that what the Gitmo Bar pulled here was a serious threat to its agents and our country. Yet press reports indicate that the Justice Department didn’t think it was a big deal and resisted CIA demands that enforcement action be taken. Those of us who have pressed for disclosure of the identities and current responsibilities of former detainee lawyers now working at DOJ have argued that the public is entitled to know about potential conflicts of interest. This would certainly seem to be one. Have any former Gitmo lawyers been involved in the Justice Department’s consideration of misconduct by the detainees’ attorneys?
On that score, Burlingame and Joscelyn remind us that, while she was at Human Rights Watch (HRW), Jennifer Daskal — brought to DOJ by Holder to work on detainee policy despite lacking any prosecutorial experience — played a central role in HRW’s investigation of the CIA. She was largely responsible for its exposure of covert CIA operations (specifically, identifying and publicizing airplanes used by the agency) and its disclosure that the CIA was secretly using prisons in Europe (and elsewhere) to hold top al-Qaeda captives. Daskal met with European Parliament officials and armed them with information that was used to pressure the Bush administration to shut down its detention and interrogation program.
Daskal, who called Bush the “torture president,” was a tireless critic of enhanced-interrogation tactics and other Bush counterterrorism policies. Moreover, in a 2006 memo, she asked the U.N. Human Rights Committee to investigate the United States for, among other things, using “the cloak of federalism” to avoid international governance; denying enemy combatants full access to the federal courts during what she described as “the so-called ‘war on terror’”; purportedly violating international treaties by operating not only Gitmo but “supermax” civilian prisons; using secret prisons for War on Terror detainees; detaining terrorism suspects on material-witness warrants; employing military-commission procedures; imposing racially rigged enforcement of the death penalty; and denying illegal aliens the right to organize in labor unions.
That is to say, Daskal has been a harsh critic of the United States, a reliable advocate for terrorists, and a champion of compromising the CIA’s wartime activities. The last is precisely what her compatriots in the Gitmo Bar have been up to. Doesn’t the attorney general think Americans are entitled to know what Daskal has been doing at the Justice Department? Whether he was aware of her anti-CIA activism before he brought her on board? What involvement, if any, she has had in discussions about the detainee lawyers? Whether there is a conflict of interest between her work at Justice and her work at HRW? Has she, for example, been involved in any way in the department’s deliberations over the disclosure of classified information from the Bush years?
I’m betting most Americans would sense a chasm between their values and Ms. Daskal’s — and between their idea of patriotism and Mr. Holder’s.
— Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008).