Eugene and Jonathan and a host of others have joined in defending the pro bono work that some Justice lawyers did for Guantanamo detainees. To me, though, this seems to be a much harder question than the critics make it out to be.
To start with, some of the arguments in favor of the attorneys don’t hold water. No one had to work for free to make sure the detainees had a right to counsel. Every one of the Guantanamo detainees already had a military defense counsel, paid for by the government. Nor did anyone have to work pro bono to even up a mismatch in power and resources. The military prosecutors are JAGs — and pretty much indistinguishable from the military defense counsel on the other side of the courtroom. It was, by and large, a fair fight. If you think the weight of government resources (such as they are in deficit-strained times) makes the fight less fair, I would note that, unlike practically all other criminal cases pitting government against defendant, there were government resources on both sides of the detainee fight. Kuwait, for example, reportedly funneled millions of dollars into both legal and public relations help for its detainees.
Of course, I agree completely that it’s not fair to simply conflate the views of lawyer and client. But even so, I would argue that, unlike paying clients, pro bono work does tell you something about a lawyer’s views.
Here’s why. As with anything you give away, the demand for pro bono lawyering outstrips the supply. So lawyers have to use other criteria to allocate their pro bono services. If you’ve got a wide choice of pro bono cases, it’s only natural to pick cases that make you feel good about yourself, that enhance your prestige in your social circles, and that help the firm recruit law students. You’ll also favor cases that allow you to demonstrate competence by winning against the odds in a high-profile matter. In short, you’ll take cases that make you and your firm look good.
It seems to me that this is exactly Liz Cheney’s point. These are lawyers who represented avowed enemies of the United States – for free – because they thought it made them look good. If you don’t share that view, she’s saying, maybe you don’t share their other views about how the justice system should handle terrorism cases.
Cutting against this analysis is the argument that lawyers often defend even unpopular and unlikeable clients in order to preserve an important principle. In that well-worn narrative, lawyers bravely stand against the tide of popular opinion to vindicate a principle, not to help a particular client. But does that trope really apply to these representations? How do you separate client from principle when the principle at issue is how we should treat a few hundred people held at Guantanamo? For all the grand talk on both sides, it seems to me that’s pretty much what’s at stake in the detainee cases. It’s not like a fourth amendment case, or a municipal employee free-speech case, where the principle you’re defending will affect tens of thousands of unknown litigants in a wide variety of future contexts. The precedents set in these cases will, as a practical matter, apply almost exclusively in a swatch of Cuban scrubland ten miles square.
But put that aside. I don’t doubt that many of the pro bono lawyers for the detainees saw themselves in exactly that light — they intended to vindicate principles they valued, and not to give comfort to the defendants. We can still learn a lot about a lawyer who takes a case on that basis. Almost by definition, issues that split the Supreme Court can be argued either way. But these lawyers felt so strongly about these arguable principles that they sacrificed paying work and instead went to work without charge for people they loathed – just to turn their principles into law. Doesn’t this tell us something about the strength and content of their principles? And isn’t it fair for Liz Cheney to ask whether the rest of the country shares those principles?
raoul says:
And pray tell what principles do you share?
March 9, 2010, 7:32 amShag from Brookline says:
The answer to raoul’s question may be:
Stewart Baker = Marc Thiessen
(See today’s – 3/9/10 – WaPo OpEd by Thiessen.)
March 9, 2010, 7:53 ampc says:
If Liz Cheney was looking for an honest discussion that would be fine, but Cheney and her cohorts are just smearing people when they use pejoratives like the “al Qaeda seven.”
March 9, 2010, 7:54 amTravis Ormsby says:
While the military personnel involved on both sides may have been of equal competence, the rules of the military commissions are stacked against detainees in ways that provide an advantage to the prosecution that they would never have in a civilian court. Hearsay? Coerced testimony? Secret evidence that the defense can’t evaluate or challenge? This was by no means a fair fight, at least by the rules that normally denote fairness in the US legal system.
And while I’m normally not a fan of the slippery slope argument, the Bush administration’s idea of expansive executive power seem to involve the ability to pick up any person, anywhere in the world, regardless of citizenship, and hold them indefinitely on the mere accusation (without need for proof) that they were involved in the “Global War On Terror.” Given how often Patriot Act provisions have been used against people not connected to terrorism in any way, that power could easily be applied to many more people than the couple hundred sitting in Gitmo. It’s very much a principal worth fighting for, and I’m not sure about the values of anyone who thinks it isn’t.
March 9, 2010, 8:02 amFantasiaWHT says:
Why are you assuming the lawyers loathed the detainees? Given how many people there are, especially on the left, who think America deserved to be attacked in such a way, that’s hardly a given you can safely assume. I’m not assuming the lawyers are those kind of people just based on their representation, but I recognize the possibility.
March 9, 2010, 8:02 amGerard N. Magliocca says:
I represented two clients on death row pro bono when I was in practice. So I guess under your theory I either: (a) oppose capital punishment or (b) sympathize with killers. But neither is true. I just had this quaint idea that everybody accused of wrongdoing should get a defense — after all, they could be innocent. How would you know unless you investigate the case?
March 9, 2010, 8:05 amCalderon says:
Here’s why. As with anything you give away, the demand for pro bono lawyering outstrips the supply. So lawyers have to use other criteria to allocate their pro bono services. If you’ve got a wide choice of pro bono cases, it’s only natural to pick cases that make you feel good about yourself, that enhance your prestige in your social circles, and that help the firm recruit law students. You’ll also favor cases that allow you to demonstrate competence by winning against the odds in a high-profile matter. In short, you’ll take cases that make you and your firm look good.
I completely agree that we have no idea why these lawyers took on the detainee cases pro bono. On this blog, people have focused on the binary positions of “maybe, just possibly, they’re sympathetic to the positions of those they represent” versus “they’re noble attorneys upholding bedrock principles of human rights.” But there are dozens of reasons to take on a pro bono case; for example, the attorney from Dellinger’s op-ed may have taken on the representation in whole or in part because Dellinger — a powerful partner at OMM — asked him to. We really have no idea of the combination of reasons why any of these lawyers took on the particular detainee representation.
All that said, we don’t normally criticize attorneys for taking on high profile cases, cases that might advance their careers, that help with recruiting, or so forth. That’s perfectly normal and expected. So why make an issue of it here?
On your last paragraph, if the Keep America Safe ad had said, “we think the legal position that detainees receive procedural rights is wrong, and attorneys who advocate that principle should not hold government positions,” I’m sure plenty of people would disagree with that stance but I don’t think anyone would consider it to be McCarthyite. Roberts and Sutton were criticized in some progressive circles for the clients they represented and their judicial nominations opposed on that ground.
The issue is that the Keep America Safe was (to put it most charitably) vague and seemed to imply that the attorneys shared the “values” of Al Qaeda. This is where I believe most people have a problem with the ad. If Keep America Safe wanted to make the argument in your last paragraph, they could have done it in a much more straightforward way without any improper implications about the views of the attorneys.
March 9, 2010, 8:08 amews says:
Easy argument to make when it assumes as true facts at the heart of the matter (e.g., avowed enemies). Shorter answer: complete rubbish.
March 9, 2010, 8:16 amcorneille1640 says:
Were they all “avowed” enemies, or “allegedly avowed” enemies? I don’t know, but if it’s the latter, then maybe representation beyond the JAG is necessary. (Of course, this doesn’t answer the question of whether the JAG lawyers would have been sufficient without the pro bono attorneys.)
Apparently, representing these detainees didn’t make them “look good” to everyone, so they apparently misjudged something there. That point aside, a lot of people do “good things” so they can “look good.” It’s sort of an incentive to do “good things.”
March 9, 2010, 8:22 amcboldt says:
This debate, as with Orin’s SCOTUS debate, has a strong element of “politicization of law” vs. “law is a principled undertaking.” The lawyers want to be taken as principled, yet there is no avoiding some connection between the legal defense of detainees with the political realm. It was politicians who erected and now maintain the framework for detention, trial, and all the other action.
March 9, 2010, 8:22 amAbdul Abulbul Amir says:
Well, I for one would find it equally troubling to bring lawyers that had been defending Mafia dons into the DOJ. Holder made this an issue by attempting to hide their names. Hiding always raises suspicion.
March 9, 2010, 8:23 amA.Reeder says:
Isn’t this incorrect? I thought that the pro bono attorneys were generally briefing the jurisdictional and habeas issues in civilian courts. In those courts, wasn’t the Government represented by the DOJ Civil Division? In fact, didn’t DOJ issue a sort of APB looking for government lawyers to detail to Civil expressly to get assigned to these cases? And wasn’t a lot of the briefing being directed straight from the Solicitor General’s office, who are generally regarded as the best appellate lawyers in the Justice Department? (Indeed, I seem to recall that at various points, Deputy SGs actually argued the issues in the lower courts.)
In that case, it seems foolhardy indeed to think that run-of-the-mill JAGs, with little habeas experience, little constitutional law experience, and dramatically less experience in non-military courts, were an automatic equal match for the resources of the federal government, which included direct involvement by Deputy SGs.
March 9, 2010, 8:27 amJustin says:
I’d be shocked if, during the parts for which the pro bono efforts were most centrally placed (on access to federal courts through writs of hc and appeals, rather than the military tribunals themselves), the Department of Justice sat idly by. Heck, I’d be shocked if they sat by during the military tribunals.
Far more likely, the JAG prosecutors were guided by the smartest and most powerful co-counsel in the world at every step.
March 9, 2010, 8:27 amLN says:
Damn it, another mindless statist. “Oh the government said it, so it must be true!” “I’m from the government, and I’m here to help!” “People in the private sector are selfish, but people who work for the government just love their country and have everyone’s interests at heart!”
More on Liz Cheney: her husband is a partner at Latham & Watkins, which has done pro bono work on behalf of accused terrorists.
March 9, 2010, 8:34 amJoseph Slater says:
It seems to me that this is exactly Liz Cheney’s point. These are lawyers who represented avowed enemies of the United States – for free – because they thought it made them look good. If you don’t share that view, she’s saying, maybe you don’t share their other views about how the justice system should handle terrorism cases.
No, Cheney’s point was that these lawyers — the “Al Qaeda 7,” to remind you of her charming term — affirmatively sympathized with the goals of the terrorists, and that more broadly, Obama is filling the Justice Department with folks who sympathize most with our enemies. And that message found a sympathetic audience among some on the right, as shown by the comments on the other threads in this issue. Fortunately, some others on the right reject these smears.
Further, this attack was entirely consistent with a meme heard too often from some mainstream Republicans and conservatives — Democrats, liberals, etc. hate America, want the terrorists to win, etc. One of the nice things about the 2006 and 2008 elections was seeing that message fail to resonate with voters. But I guess old habits die hard in some quarters.
March 9, 2010, 8:37 amAbdul Abulbul Amir says:
The point is that these lawyers indeed have a conflict of interest. Regardless of how they felt about the guilt or innocence of the detainees going in, or the actual guilt or innocence of any individual detainee, those lawyers are in a position to to show after the fact they were on the angles side of the law.
Two of these lawyers were reportedly in the OLC that went after Yoo. Case closed.
March 9, 2010, 8:38 ampc says:
How did Holder hide the names? Did he redact the public list of DoJ attorneys? Did he redact the names of the lawyers from the detainee briefs? Or do you mean the DoJ chose not to use its resources to do research of publicly available information for a Senator looking for political football?
March 9, 2010, 8:45 amAnderson says:
These are lawyers who represented avowed enemies of the United States – for free – because they thought it made them look good.
Says who?
How do you separate client from principle when the principle at issue is how we should treat a few hundred people held at Guantanamo? For all the grand talk on both sides, it seems to me that’s pretty much what’s at stake in the detainee cases.
Ah. No issues of unchecked executive authority. Obviously I have been reading the wrong blogs.
… Where did this Stewart Baker character come from? Oh, here:
He also counsels clients on issues involving foreign sovereign immunity, and compliance with the Foreign Corrupt Practices Act.
Couldn’t possibly be representing any shady clients for $$$ with a practice like that. Mr. Baker is obviously well poised to sit in judgment of his fellow attorneys. I hope they treat him with all the respect he deserves.
March 9, 2010, 8:49 amMidlantan says:
Of course, Stewart apparently thinks it’s fair to conflate the views of lawyer and client only in complex and more nuanced ways, as he does in his post. Stewart, your frame “making your[self/firm] look good” and “fighting for unpopular clients to preserve an important principle” as two separate things (and then assert that the DOJ lawyers in question cared only for the first). But doesn’t a pro bono lawyer “make himself look good” not only by prevailing (or at least working hard) in a difficult case, but also by working to defend an important principle? You describe the latter notion as “well-worn,” as though that somehow makes it less true. Isn’t that narrative “well-worn” because it is true? Of course you also dismiss the important principles for which the detainees’ counsel was fighting in the narrowest, most dismissive terms. Perhaps you would frame the issues at stake in these cases as limited to a tiny patch of scrubland in Cuba. Certainly there are some on the prosecution side who would prefer that, as it makes it easier for them to avoid rejection (or for the most part, even scrutiny) of their actions by the courts. But your framing of the issue is by no means a foregone conclusion. Those cases did (and do) indeed have larger implications for fundamental legal issues affecting far more than the four corners of Gitmo.
So, to answer your last question – no, it isn’t fair of Liz Cheney to “ask.” She was asking nothing, but rather, making deplorable insinuations and accusations. Your (pro bono?) post on her behalf, although deeply flawed in a number of ways, is significantly “fairer” than any comment she or her group has made on the subject of Gitmo, detainees, or terrorism.
March 9, 2010, 8:49 amcorneille1640 says:
I don’t know a lot about this issue, but I suspect that lawyers who had defended Mafia dons did not do so on a pro bono basis. I thought one of the advantages of defending the dons was that it paid well.
As for hiding the names: if Mr. Holder did do this and if it’s not standard practice (that is, if it’s not something like, the DOJ doesn’t release the names until the lawyers have been formally hired, or whatever), then it is disturbing, or at least clumsy.
March 9, 2010, 8:50 amDavid M. Nieporent says:
The post is rather disingenuous. Even if we grant every point in there – and I think many of them are fair – it’s still outrageous to suggest, as Cheney et al. did, that the lawyers were sympathetic to Al Qaeda. It’s that insinuation that has led all Right Thinking People to condemn the advertisement.
March 9, 2010, 9:03 amSteve says:
These are lawyers who represented avowed enemies of the United States – for free – because they thought it made them look good.
I know it’s crazy, but there could be other motivations; for example, quite possibly there are intelligent people of good faith who believe that not everyone detained at Guantanamo was an avowed enemy of the United States. I know, I know, just by making that statement it’s obvious I don’t share Liz Cheney’s values, but some of us like to see more support for a proposition than just some demagoging politician saying, “Trust me, everyone at Guantanamo is the worst of the worst.”
March 9, 2010, 9:04 ampc says:
And now I will reveal my devious plan to uncover the hidden DoJ lawyers that represented detainees:
list_of_doj_lawyers.each { |lawyer| list_of_detainee_lawyers.include?(lawyer) puts lawyer }
Take that Holder!
March 9, 2010, 9:07 amAnderson says:
PC, you’re an xkcd reader, I gather?
March 9, 2010, 9:13 amDC JAG Guy says:
“How do you separate client from principle when the principle at issue is how we should treat a few hundred people held at Guantanamo? For all the grand talk on both sides, it seems to me that’s pretty much what’s at stake in the detainee cases.”
As one of the previous commenters sarcastically noted, that was not the main issue. These cases were fundamentally about the inherent powers of the Executive and the constitutional balance of wartime powers between the Presidency and the Congress. These issues are infrequently litigated in our country, so I completely understand any Con-Law nerd’s desire to get wrapped in these cases — regardless of the client.
March 9, 2010, 9:17 amMark says:
This was a political attack on a fundamental tenet of our legal system. Quit trying to excuse it away.
March 9, 2010, 9:20 amyoo_now_who says:
‘To me, though, this seems to be a much harder question than the critics make it out to be.’
Whereas the question of what sort of person you are is now easily answered.
March 9, 2010, 9:21 ampc says:
Indeed. Having done a fair amount of data mining for clients, the idea that Holder was hiding this information is rather amusing.
March 9, 2010, 9:29 amMike McDougal says:
You assume without justification or explanation that the goal is to set precedent for Gitmo. It seems quite likely to me that the goal could be to support the principle that governments should act as humanely, fairly, and transparently as possible. Your conflation of principles with precedent looks a lot like a deliberate attempt to distort the issues.
March 9, 2010, 9:30 amRyan says:
That’s not what Stewart said. He merely pointed out that we may be able to gain some information about the person. It’s not fair to equate the defendant’s views to the attorney; but at the same time, that doesn’t mean the attorney doesn’t share the client’s views. I believe he was merely pointing out that we may be able to gain some insight into the person. It may not be the insight Liz Cheney was implying, but we may be able to gain something.
March 9, 2010, 9:31 amBobC says:
If I am the DOJ:
After I establish these new lawyers don’t intend to screw me or do sub par work, I want to hire the guys who took the executive branch to the cleaners during wartime. Meritocracies do not work if you hold grudges.
March 9, 2010, 9:31 amorca says:
“It was, by and large, a fair fight.”
I think it’s safe to assume Stewart Baker never read any of the Gitmo transcripts.
March 9, 2010, 9:31 amSarcastro says:
There should be a ban on all people motivated, even in part, by personal ambition.
People that want to “look good” are bad people, and they should feel bad and never work for the government.
Also part of the ban: concerns about the civil rights of bad people. These may be civil appointees, but Obama doesn’t get a free pass just because other Presidents have!
FantasiaWHT is just asking a question, why all the fuss? No one is demonizing anyone, we’re just noting the connection of some liberals to terrorists, and then asking questions about other liberals as well!
Also there are easily answered concerns about transparency and conflict of interest that I’m gonna keep asking over and over to prove I’m not about demonizing folks.
March 9, 2010, 9:38 amCognitive Dissonance says:
Nobody on the left believes that America deserved to be attacked.
Understanding (on an intellectual level) why American foreign policy might provoke some one in another country to dislike (or even hate) America . . . is very, very different from believing that America “deserved” to be attached . . .
On the right, on the other hand–I can name a few who believe that America deserved to be attacked. http://www.beliefnet.com/Faiths/Christianity/2001/09/You-Helped-This-Happen.aspx
March 9, 2010, 9:40 amUnfortunateLawyer says:
Here’s my problem. It seems that the legal community (which I am a member of), attempts to stand up on a pulpit and hold themselves higher than the ordinary citizenry. I think the essence behind Stewart’s point, and Liz Cheney’s (although, she conveyed it in a terrible manner), is that there are times when you can gain a lot of insight into the attorney by who he represents and how he does so.
What’s wrong with at least putting the information out there and letting people decide for themselves why the lawyer did it. The lawyer may say he/she did it to protect a fundamental right. Citizen A can choose to believe that and Citizen B can choose to believe something else.
But, to say that an attorney should never be criticized for a choice of who they represent is absurd. Some lawyers pick bad clients because they want to help bad people do bad things. Is it a majority? No (or at least I hope not). Is it even a significant minority? Probably not. But, why are we barred from looking at a lawyer’s past representation to attempt to gain meaningful insight into the lawyer? That insight may lead us to the conclusion that the lawyer is a great person for standing up for the rights of an unrepresented group/person. It may also lead us to the conclusion that the lawyer did it because he/she agreed with the client’s motives. To categorically deny this inquiry is absolutely wrong.
(Let me be clear. I think Cheney went overboard and did so in an inflammatory way. I’m not even sure I agree with her conclusions. But, to say that we aren’t allowed to go down the path at all is equally absurd.)
March 9, 2010, 9:44 amDavid Schwartz says:
Sorry, I find this whole argument ridiculous on its face. I see absolutely no validity to the other side’s position whatsoever. Anyone with a position on this issue worthy of any respect whatsoever should agree that it’s important to get these cases *right*. They should see anyone who works to reach that end as on their side and on this country’s side.
March 9, 2010, 9:46 amAnderson says:
Understanding (on an intellectual level) why American foreign policy might provoke some one in another country to dislike (or even hate) America . . . is very, very different from believing that America “deserved” to be attached . . .
This points to a fundamental problem we seem to have grasping the nature of evil. I don’t know if it’s church, or bad movies, or what, but we seem to imagine that evil people choose to be EEEEEVIL, bwah ha ha ha ha! “Evil, be thou my good,” and all that.
Whereas it’s vanishingly rare to find evil people who don’t imagine that they’re doing what’s good for some group or other, and that the ends justify the means. Even Hitler thought that.
So it’s to be expected that bin Laden et al., and more importantly for our purposes the kind of people who support him, see themselves as doing good and see *us* as evil. There is not much to be done to change Osama’s mind on the subject, but what’s lost in the constant refrain (familiar to VC readers) of “foreigners hate us regardless” is that foreigners have NOT always hated the U.S., many still don’t, others are ambivalent, and our actions really can make a difference to how we’re perceived by most people.
March 9, 2010, 9:49 amSarcastro says:
Yep, mob lawyers don’t just like to get paid fat sacks of cash money. They do it to be eeevil! And then they cackle maniacally! Oh what villains these lawyers be!
March 9, 2010, 9:51 amgeokstr says:
How about another “motivation” no one has mentioned that’s pretty apparent in many of the Obama appointees, in all the departments – a terminal case of pathological Bush/Cheney/Palin/et al Derangement Syndrome. One doesn’t have to be for our “enemies”, just virulently anti their common enemy. Although then you just might get a lot of activity that is potentially indistinguishable from being for our enemy, non?.
Is everyone saying that ideological beliefs have no effect whatsoever on the decisions and actions of political appointees of the Obama (or any other) administration? Gosh, they must all be superhuman, like media people who donate and vote 10-to-1 for Democrats but assure us they play it right down the middle in their reporting.
And if that is not the case, how else do you explain Holder’s decision to try KSM in NY when KSM had already declared his willingness two years ago in writing to a judge to plead guilty to everything Holder wants to now give him a very expensive show trial to prove what he’s already confessed to having done. To this non-lawyer, this looks like insanity or political machinations to the extreme.
And all “Right Thinking People” agree with you? Such moral superiority reeks.
(Oh, and Mr. Baker, I knew as soon as I saw that you were partially defending Liz Cheney on this issue that the ad homs would be coming at you.)
March 9, 2010, 9:51 amBenjamin Davis says:
Online influence spaces how I love them. And now a former General Counsel of the CIA steps into the fray. This whole thing about the DOJ lawyers is about keeping Americans in the dark.
As one would expect with persons who advocate and conducted torture in the prior administration, they would attempt to keep themselves from criminal prosecution once out of office. Nothing new under the sun. They have a wonderful website at http://www.keepamericasafe.com/ and their Board subtly tries to co-opt the tragedy of 9/11. Well since I lost a high school classmate in the World Trade Center towers, I am not going to let his loss be instrumentalized to countenance American torture.
So as an American citizen, I am going to once again step into the fray to my fellow Americans and ask them to not let themselves be kept in the dark by these people. Bring light is what we need to do
One new twist in this effort to get us to acquiesce to torture is the effort to put pressure on DOJ lawyers who represented detainees. This smacks of the effort during the last administration of “Cully” Stimson to pressure law firms that had lawyers working pro bono for the defense on those cases. Given the uproar at that time, Mr. Stimson had to resign as was described in the WSJ at cully-stimson-resigns . So the Keep America Safe effort is just a new iteration in the effort to squelch dissent by those who resisted the violations of the Geneva Conventions and the torture in the prior administration. Nothing new under the sun.
A further twist is the open letter in “support” of the lawyers that has recently been developed as described at letter. Among the signators are a laundry list of persons who in the prior administration’s time were strong advocates for torture. Of course, the zen of this letter is to try to put the current DOJ lawyers who defended detainees on the same level as the former DOJ lawyers who advocated for torture and thus rehabilitate the former DOJ lawyers. Sorry folks, even here in Toledo, we can see that game and it will not work. The former DOJ lawyers advocated for a crime to be committed, The current DOJ lawyers advocated for the defense in adversarial proceedings. These are fundamentally different animals and no effort at equivalence should be allowed to succeed to keep Americans in the dark.
Look, my fellow Americans, you either resist torture or you acquiesce to it. There is no middle ground. If you are so fearful that you are willing to think torture is OK, then you are just joining a long line of Americans in our history who in moments of hysteria were willing to give up everything. If you are, like the top military JAG officers in that time, willing to see the detrimental consequences of torture for America and that a state crime was committed, then I would ask that you stand with people like me and seek the criminal prosecution of the DOJ lawyers from the past administration so we can wash our very dirty laundry here at home rather than in some court overseas in Spain.
I recognize the effort to get you to acquiesce to torture is sophisticated and relentless. That is what people who advocate for torture do to avoid a day of reckoning in court. And those who you do not see named are the high-level civilians who were pushing for torture up to their earballs in the NSC Principals, the White House, and Congress. These persons have a stake in Americans not being aware of what they really did and also in not having what they did – whether Democrat or Republican – brought out for the world to see. I would even wager that there are leaders or former leaders of other countries that helped us who do not want to see their efforts to support torture come out in the public.
But so what for the egos and reputations of these people. They besmirched their reputations by putting torture in place, by perverting our soldiers to do their bidding, and then letting the grunts at the bottom take the fall when the Abu Ghraib scandal erupted.
They are perfectly willing to instrumentalize anything, anything to prevent themselves from being prosecuted. Do not let yourself be kept in the dark. Ask for light to be brought in the cold brilliance of a court room. It may not be good politics for this or that administration, but it would be a good thing for America. So tired of having to write these things, but when it comes out we will all know who was quiet and who took a stand against torture. And that is the choice each American has to make when the forces are attempting to spin the problem into something else so that we sweep this all under the rug.
This is not going under a rug. Not if I can help it.
I appreciate that at least here as opposed to at Balkinization, you can publish comments. Thanks Eugene.
Best,
March 9, 2010, 9:53 amBen
Benjamin Davis says:
I do believe the problem with the willingness to plead guilty of KSM is that the MCA did not provide for that possibility which made it problematic. Plea deal yes (Hamdan). Pleading guilty, no. That is the problem with just having the guilty plea.
March 9, 2010, 9:54 amBest,
Ben
ben says:
Sure, but they will live for eternity in Con law course books. Sounds like the type of case all attorneys would want to be involved in.
March 9, 2010, 9:57 amepluribus says:
UnfortunateLawyer:
Since when are lawyers required to explain why they represented a client? Since attorney-client communications are privileged, I thought an inquiry into the lawyer’s motivations was beyond the pale. If the lawyer conducts himself/herself ethically, that should be the end of the inquiry. So far as I understand it, it is not unethical for a lawyer to represent an accused client; not unethical to represent an unpopular client; not even unethical to represent a guilty client. It is heroic for a lawyer to represent an innocent client who is unjustly accused. Is the Sixth Amendment still part of our Constitution?
March 9, 2010, 10:08 amMark Field says:
The argument in the post is so weak that I wonder if Prof. Volokh deliberately stacked the deck. RowerinVA made better arguments in the other threads than the ones made here.
March 9, 2010, 10:16 amMartinned says:
Didn’t you hear? The Constitution doesn’t apply to GITMO.
March 9, 2010, 10:17 amAnderson says:
Scott Horton reminds us of a relevant precedent:
But the question that Liz Cheney asks is an appropriate one. “Whose values do they share?” Perhaps it’s the values of John Adams. After the Boston Massacre, when revolutionary sentiment was flaring, Adams stood up to represent the British soldiers accused of slaughtering his fellow Bostonians in a criminal trial, and he helped them beat the rap. Most of his fellow citizens were dumbstruck by his decision, but at the end of a long life, looking back, Adams decided that this was “one of the best Pieces of Service I ever rendered my Country.”
March 9, 2010, 10:18 amMark Field says:
Just to be clear, my post was in no way intended as snark against RowerinVA, but as a compliment — his/her arguments certainly were better than Stewart Baker’s.
March 9, 2010, 10:19 amorca says:
I disagree.
I think the only point of the laughably named “Keep America Safe” clown car is to make money for its owners, period:
https://secure.donationreport.com/donation.html?key=PCAOW2Q9QJE4
Think of the attack on the DOJ lawyers as an ad campaign that most “news” sources are willing to carry for free.
March 9, 2010, 10:19 amgeokstr says:
WTF?
I didn’t realize that the Reverend Jeremiah (chickens’-roost) Wright was an evil rightwinger. Does he get a pass because he said that only white America deserved it? How about Ward Churchill?
How many on the left believe it was the US foreign policy in the Mideast favoring Israel that “caused” the Muslims to want to attack us? How is that different than saying that we “deserved” it?
March 9, 2010, 10:21 amUnfortunateLawyer says:
Thanks all for misrepesenting my point. I apperciate that you (epluribus and Sarcastro) are so interested in a general debate that you have to resort to these tactics.
Sure some do it just for money. But, I think we can all agree that there are so lawyers out there who are bad people. It’s a misnomer to believe that all are perfect and are representing clients for legitimate reasons.
And, I never said a lawyer is required to explain his/her representation. However, an agent for the United States (and, ultimately, the people), should be examined in any way possible. We should make sure they are qualified and will do a good job. It is fair to use all information available and draw whatever the logical conclusion is from that representation.
But, nevertheless, since you are more interested in making snide comments instead of pointed ones on the merits of what I said, maybe you can’t understand my original point.
March 9, 2010, 10:23 amjosh says:
“I would argue that, unlike paying clients, pro bono work does tell you something about a lawyer’s views … it’s only natural to pick cases that make you feel good about yourself, that enhance your prestige in your social circles, and that help the firm recruit law students. You’ll also favor cases that allow you to demonstrate competence by winning against the odds in a high-profile matter. In short, you’ll take cases that make you and your firm look good.”
This is substantially wrong. I spent 6 years at BigLaw representing a serial rapist who had completed his entire prison term and was being civilly committed indefinitely by the State. If that work tells you anything about my views, it’s only that I’m a fan of due process and an enemy of ex post facto laws. It does not tell you that I support serial rape.
The pro bono lawyers in question likely, at most, also support due process — something that arguably was lacking during the last presidential administration. But to conflate that with an unfounded identification with the alleged perpetrators of terrorism is not only irresponsible, it also entirely fails to recognize the purpose of pro bono work.
March 9, 2010, 10:30 amSarcastro says:
Indeed! It’s not demagoguery, it’s assuring good government! Every civil service employee should be held up to the scrutiny of the American People! This is sure to do wonders for governmental efficiency and bipartisanship!!
Furthermore, such scrutiny should clearly include the amount of evil in any clients a lawyer takes. Defending civil rights is fine, but if it the rights of the wrong people you will be judged!
March 9, 2010, 10:35 amBob from Ohio says:
If that was the plan, thanks to all the hand wringing, it worked perfectly.
Maybe they should send thank yous to the conservative critics especially. The open letter added a week to the impact.
March 9, 2010, 10:42 amCarolus says:
Many times, I believe, a lawyer does pro-bono work as an act of allegiance to his/her political beliefs. If a lawyer does not seek a political appointment, that’s not an issue, and it would be an infringement of privacy and a breach of principle to question such a lawyer.
But if (a) the pro bono work was an act of political faith, and if (b) that lawyer seeks a political appointment, and if (c) that political appointment is in an office where neutrality of political principle is/should be held high, then I don’t see why questions should not be raised.
Suppose, as someone on the tube suggested yesterday, that some Republican Administration appointed lawyers to OLC and OLE or other “neutral” offices in DOJ who had done pro bono work for Ku Klux Klaners previously, and then put them in charge of policies on racial discrimination, do you think the left would have let that fly? I don’t think so, I believe the Wild Things would have had a Rumpus.
So, spare us the crocodile tears over Liz Cheney’s questions. The suggestion that the pro-bono work for Gitmo detainees was not an act of politics is just plain silly. Such an act would be a perfectly respectable act for any lawyer to commit — unless that lawyer also wants to work in DOJ or other terrorism-policy making departments. I don’t want KKK supporters there, and I don’t think terrorist defenders belong there either. I wouldn’t mind if they did legal work in HUD or DOL or HHS or other domestic agencies — but not in DOJ, DHS, State, or DoD. And I don’t want that kind of radicals in charge of legal policies on detainees. DOJ was heavily criticized for being politicized under Bush — Federalist society hires, remember that? and the attacks on Yoo for politicizing OLC have been beyond ferocious. If we are going to keep at least of semblance of a non-political DOJ, let’s try to be even-handed in our criticisms.
March 9, 2010, 10:45 amepluribus says:
UnfortunateLawyer:
March 9, 2010, 10:45 amWhen you accuse other posters of misrepresenting your points and of “being more interested in making snide comments instead of pointed ones on the merits” you have gone beyond civil discussion. There was nothing in my post that was “snide.”
Ken Arromdee says:
There are degrees of sympathy. While it’s silly to suggest that the lawyers sympathized with the terrorists in the sense that they’d go to Afghanistan and fight for the Taliban, it’s a lot more plausible that they had sympathies that were lesser, but enough that we should worry about them being in the Justice Department.
March 9, 2010, 10:45 amAbdul Abulbul Amir says:
The form of pay is not at issue. As a matter of fact a payment that puts shoes on the kids and food on the table creates less conflict of interest later IMO than a payment that feeds the ego.
March 9, 2010, 10:47 amArthur Kirkland says:
I have mixed feelings about comment moderation, largely because of the burden on Conspirators.
I have, however, become an unqualified advocate of moderation of original posts.
March 9, 2010, 10:48 amfrankcross says:
I find it remarkable that a lawyer would be so dismissive of the precedents to be set by this case. Especially before they are set.
March 9, 2010, 10:51 amMTM says:
One good reason to take these detainee cases pro bono is that Uncle Sam is getting too big for his britches and needs to be contained.
March 9, 2010, 10:55 amKen Arromdee says:
I think it’s fair to assume that you have a greater chance of opposing capital punishment and/or sympathizing with these particular killers. This would be especially so if death row prisoners were as rare as Guantanamo detainees.
Yes, that assumption can be wrong (and is in your case), but it’s something we have to do. If we can’t judge political figures based on their suggestive-but-not-probative actions, we pretty much lose the ability to judge political figures at all.
March 9, 2010, 10:55 amArthur Kirkland says:
If this Conspirator identifies persons who have never been convicted or charged (some released already, many found to have been purchased from bounty hunters rather than captured on a battlefield) as “avowed enemies of the United States,” I wonder what terms he reserves to describe those whose official conduct with respect to treatment of prisoners has been adjudged to have been un-American (unconstitutional) as a matter of law?
March 9, 2010, 10:56 amT. Gracchus says:
I don’t see why choice of paying clients would provide no information about a lawyer but choice of pro bono clients will when the lawyers at issue all work for large firms. As association with paying clients in such firms is typically for significantly longer periods and typically involves a close relationship (indeed, developing a personal relationship is a key marketing activity), paying clients may be a better source of information about the lawyer than pro bono activity.
March 9, 2010, 10:58 amEMB says:
And to anyone abroad that the government may decide to detain indefinitely in the future with only a “trial” in a military tribunal.
March 9, 2010, 10:58 amMark says:
Carolus said:
So, let me understand.
If some attorney worked the plaintiff’s side of a First Amendment case like the Nazis marching in Skokie case, he should be barred from working in DOJ, DHS, State, or DoD?
Wow, there is no limit to which some people will seek to subvert our justice system. And this is no “red meat” idiot blog eliciting these types of comments, either.
Truly the America’s collective pants-peeing over terrorism is being put to good use by partisan hacks like Liz Chaney.
March 9, 2010, 11:09 amGuest14 says:
There’s no real factual controversey about the KKK’s history and positions. Pretending that there was a similar lack of factual controversy regarding the detainees is pure sophism. You’ve exhibited a total lack of intellectual honesty, and you should be ashamed of yourself.
March 9, 2010, 11:21 amChrisHo says:
While I find the groups methods to be extreme I do not think any profession is above being called on for their actions. Considering the level of partisan sniping going on in Washington these last dozen years it is not out of the question for the lawyers to have taken the cases for non altruistic reasons. No profession is above reproach
March 9, 2010, 11:34 ampc says:
There are plenty of people who believe there is no factual controversy about the detainees:
The detainees are in Gitmo. Only bad people are in Gitmo. Therefore the detainees are bad people. QED.
March 9, 2010, 11:34 amorca says:
I think an unintentional result of Deferment Cheney’s money grubbing is that decent Republicans have started standing up to the extremists who have taken over their party.
March 9, 2010, 11:35 amEric Rasmusen says:
Nice “opportunity cost” example. You can expand it. These are lawyers who could have done pro bono work to represent poor Americans who had to rely on overworked public defenders. Instead, they chose to work for terrorists who already had first-rate counsel and foreign aid. Thus, their pro bono work doesn’t say that they like justice in general, just that they like working on glamorous cases involving constitutional law and opposing George W. Bush.
March 9, 2010, 11:39 amConstantin says:
Everything else aside, this is an absurd assertion. Ask Barack. He sat and listened, without objection, to someone argue to the contrary for twenty years.
March 9, 2010, 11:40 amDavid Sucher says:
What interests me is how much emphasis Baker places on how lawyers “look good,” and the implication is sour.
But then again, Stewart Baker is doing the very same thing by writing this post: to “look good” for some constituency or some goal unrelated to client paying.
March 9, 2010, 11:41 amElliot says:
Makes one wonder why Holder wouldn’t release the names of these upstanding lawyers defending bedrock American principles. (Did their firms pay them for this work?)
March 9, 2010, 11:42 amEric Rasmusen says:
I’ll also make a point that goes against the post’s argument that we can learn a lot about these lawyers’ policy views from their choice of pro bono work. We’d have to know how much income they sacrificed, if any. If they were associates at large law firms who were paid annual salaries, then this pro bono work might just mean they like glamorous con law work better than dry work learning about the intricacies of telephone regulation. In other words, they’re normal human beings– except that maybe they’re willing to hurt their country to get away from boring work. It does, however say something about the *law firm* they work for, that let’s them spend valuable hours working on zero-revenue projects.
March 9, 2010, 11:42 amLN says:
I’m not calling you a traitor, I’m just saying it shouldn’t necessarily be out of bounds to call you a traitor.
Passive-aggressive smear campaigns, for partisans who don’t have the courage to fully embrace their convictions, and who have a pathological need to seem reasonable.
March 9, 2010, 11:44 amLN says:
I don’t know about the DOJ attorneys. But this seems like a pretty good description of yourself — someone spending some free time on a blog to undermine the American legal system by making disingenuous comments.
My country’s values are at stake, and I don’t appreciate disingenuous anti-American nonsense. You seem like you would have been quite happy in Soviet Russia (at least maybe; it certainly shouldn’t be out of bounds for me to consider the possibility).
March 9, 2010, 11:49 amBob from Ohio says:
Dream on. It is a handful of establishment lawyers with mimimal influence on the party, whatever their legal influence in Washington.
Most Republicans would agree with the sentiments contained in the ad.
March 9, 2010, 11:54 amCharleyCarp says:
Can anyone name the military lawyer assigned to Lakdar Boumediene? (Hint: the answer is not “Same guy who defended Shafiq Rasul, right?”)
I thought not. None was. Doesn’t that more or less completely eviscerate the point of this fact-challenged apologia?
There’s a pretty big difference between ‘Every one of the Guantanamo detainees already had a military defense counsel, paid for by the government’ and ‘Under 30 of the nearly 800 men who have been detained at Guantanamo have been assigned a military lawyer.’ People who can’t tell the difference, or can’t be bothered to learn the facts, are worthy of no attention at all.
March 9, 2010, 11:55 ambk says:
ahh…here’s the VC that I have come to love…a rather dubious article written by a political hack full of disingeneous arguments, missinformation and ridiculous assumptions.
thank you mr baker for filling the void left by the recent lack of lindgren and bernstein posts
March 9, 2010, 11:55 amzuch says:
Stewart Baker:
Certainly not true of Padilla. And AFAIK, not true of the detainees in the initial years of their confinement; it took the efforts of outside counsel just to win the court cases they did in order to get them the rights that they have (including the right to some type of counsel).
I posted some blog entries on this subject a while back here, here, and here (for a partial rundown on what the previous administration wanted to do in terms of providing some semblance of “trials”).
Well, yes. NIce that both sides are from the same team. Isn’t that in itself a part of the problem? See my links above.
Cheers,
March 9, 2010, 12:04 pmorca says:
That says volumes considering the ad is arguably the most un-American crap spewed by a right-wing crackpot so far this this year…but it’s only March and the race to the bottom is swift.
March 9, 2010, 12:04 pmzuch says:
Stewart Baker:
“Natural” for some, perhaps. But perhaps you shouldn’t assume to know how others select their clients.
Yeah, like the ACLU does. Everyone knows they are Klan lovers.
Or how a few hundred Nazis are treated? Scr*w ‘em, they’re effin’ Nazis, who cares?
Cheers,
March 9, 2010, 12:10 pmsecond history says:
The military prosecutors are JAGs — and pretty much indistinguishable from the military defense counsel on the other side of the courtroom. It was, by and large, a fair fight.
Yeah, I want to be defended by someone whose career advancement is dependent on losing.
March 9, 2010, 12:12 pmA.S. says:
Exactly right, Stewart.
These were people who volunteered millions of dollars’ worth of valuable services to help terrorists who were already well-defended and well-funded. Instead of helping genuinely poor people desperately in need of legal services in their own communities.
The people defending these lawyers ought to be ashamed of themselves.
March 9, 2010, 12:15 pmDavid M. Nieporent says:
Padilla wasn’t at Gitmo.
March 9, 2010, 12:20 pmSarcastro says:
[A.S. you've never worked pro bono for a law firm, or you'd know that not only is it required, but that it is paid (or counts for hours.)
Nice way to assume these folks are terrorists. Some detainees were held by mistake and have since been released. Who is to say there are nor more.
No idea about the whole well-defended bit, though some upthread seem to have already addressed that point.
As for shame, I gotta say I find your vilification of those whose views on detainee rights might differ from yours to be more shameful. I don't think being conservative is worthy of shame, just as being liberal does not. My conscience does not bother me, does your conscience bother you?
Tell the truth.]
March 9, 2010, 12:23 pmA.S. says:
BTW, Eugene’s and Jonathan’s position seems to be that a lawyer’s choice of pro bono work does not and ought not tell us anything about the lawyer. I am curious whether that is the case for Eugene’s and Jonathan’s choices of pro bono clients. If we ran down the list of Eugene’s pro bono clients, is it really the case that we ought to infer nothing?
March 9, 2010, 12:25 pmDangerMouse says:
Everything else aside, this is an absurd assertion. Ask Barack. He sat and listened, without objection, to someone argue to the contrary for twenty years.
That’s true, and it shouldn’t be forgotten, along with Obama’s associations with unrepentent terrorist Bill Ayers.
March 9, 2010, 12:25 pmbyomtov says:
It seems to me that this is exactly Liz Cheney’s point. These are lawyers who represented avowed enemies of the United States – for free – because they thought it made them look good. If you don’t share that view, she’s saying, maybe you don’t share their other views about how the justice system should handle terrorism cases.
As has been pointed out endlessly, the word is “alleged,” not “avowed.” No doubt many Americans don’t share the view that alleged enemies deserve representation. So what? If a lot of Americans think an accused serial killer doesn’t deserve representation does that mean he shouldn’t get it, or that his lawyers are doing something wrong?
And isn’t it fair for Liz Cheney to ask whether the rest of the country shares those principles?
Are you really suggesting that Cheney and Kristol were trying to start a serious discussion?
March 9, 2010, 12:27 pmCrazyTrain says:
And the thread has a winner folks. Well done.
March 9, 2010, 12:28 pmA.S. says:
A.S. you’ve never worked pro bono for a law firm, or you’d know that not only is it required, but that it is paid (or counts for hours.)
I am currently a partner at an AmLaw100 firm, and have always worked for large firms. So, yes, I know how pro bono works at large law firms.
March 9, 2010, 12:28 pmAnderson says:
Rasmussen: It does, however say something about the *law firm* they work for, that lets them spend valuable hours working on zero-revenue projects.
What on earth is that supposed to mean? What does Rasmussen think “pro bono” is?
Any position worth arguing for should be possible to argue for without sounding absolutely clueless.
March 9, 2010, 12:33 pmGary says:
There is absolutely no doubt that these lawyers agree with the political orientation of their clients.
March 9, 2010, 12:33 pmSarcastro says:
[So how could you say they "volunteered millions of dollars’ worth of valuable services" when in fact it was their firm who gave up money.
If their firm has standard pro-bono practices, they themselves gave up no money and indeed got pro-bono credit for their work.]
March 9, 2010, 12:34 pmzuch says:
It’s a bit different when you say that Gawd brought down the hammer (ala Robertson/Falwell). Once you posit that, it verges on blasphemy to disagree with the fact that we actually “deserved” it then.
Cheers,
March 9, 2010, 12:35 pmzuch says:
If I’m not mistaken, it is the Republicans, not the Democrats, that have taken issue with ACLU-associated lawyers getting judgeships or DoJ posts.
Cheers,
March 9, 2010, 12:38 pmCognitive Dissonance says:
Did 9/11 happen twenty years ago?
I concede this: You have shown that the statement “Nobody on the left . . . ” is incorrect. With absolute statements (“nobody”), one counter-example proves them wrong. (Perhaps the lesson to be learned from this is that both the right and the left include extremists (some religious) who believe that the U.S. “deserved” 9/11.)
So I will re-phrase: Most on the left don’t feel that the US “deserved” 9/11. Most on the left do not share Rev. Wright’s views on this issue. (I recognize that the terms “most” and “on the left” are both fuzzy and subject to interpretation. But I’ll stand by this statement, notwithstanding its inherent interpretive issues.)
In response to your question: It baffles me that the distinction is not readily apparent. I can see a cause-and-effect relationship (X may have caused Y). I can then also feel that Y occurring in response to X is unjustified/undesirable/unfair/illogical/etc.
E.g.: U.S. foreign policy may have caused some people to hate America and commit violence against Americans. At the same time, no aspect of U.S. foreign policy justifies (morally/ethically/etc) these acts of violence against Americans.
March 9, 2010, 12:39 pmanomdebus says:
Perhaps a “solution” to the “problem” would be to enact a lottery system whereby attorneys who wish to provide pro bono representation put their name in a hat and are chosen at random for a particular client. This way you couldn’t say they had reasons for picking a particular client.
March 9, 2010, 12:40 pmGranted it is a little more complicated than that as you want the attorney’s expertise used, so perhaps some keywords are warranted (tax, death penalty, international).
Cognitive Dissonance says:
I say “Bill”!
You say “Ayers”!
Bill!
Ayers!
Bill!
Ayers!
March 9, 2010, 12:44 pmzuch says:
And exactly who was this psychic?
Cheers,
Cheers,
March 9, 2010, 12:44 pmzuch says:
He was moved from civilian “material witness” status (note, not a “defendant” or an “accused”, so no lawyers here either) to military custody (and in part, no doubt, to prevent any lawyers from getting involved).
And then there’s Hamdi as well, who was at Guantánamo….
Cheers,
March 9, 2010, 12:52 pmzuch says:
AFAIK, some states have such a system set up for pools of lawyers to defend indigents and/or capital cases (where the state has an interest in forestalling “ineffective counsel” appeals and wants to ensure that suitably qualified lawyers are on board).
Such a system does have its drawbacks; those drawn from such pools have sometimes been accused of less than zealous representation.
Cheers,
March 9, 2010, 1:03 pmBored Lawyer says:
I had similar thoughts. I would modify your hypothetical a bit. Suppose a lawyer or group of lawyers work for a large, commerical law firm. Mostly they represent big corporations in commercial-relaed cases. But, as many such firms do, they are required to devote a given number of hours a year to pro bono work.
So our lawyers decide to use their alloted hours to represent Operation Rescue and other anti-abortion groups in their various legal battles. They file numerous legal briefs arguing how the restrictions on picketing before abortion clinics violate the First Amendment. They even have some success and they gain some fame as 1st Amendment litigators.
Then a Republican administration takes office, and decides to appoint these lawyers to the DOJ, specifically to the group (or task force or whatever they call it) responsible for enforcing federal laws protecting access to abortion clinics, principally FACE (the Freedom of Access to Clinics Entrances Act). This will involve, among other things, considering prosecution and other measures against Operation Rescue and other anti-abortion protest groups.
Anyone see a problem here? Anyone think this would not be questioned, if not viciously attacked? Would anyone be satisfied with the answer, “But lawyers represent unsavory clients all the time, and besides, they were vindicating 1st Amendment rights, which is a noble cause going back to the founding of the Republic?”
March 9, 2010, 1:05 pmJC says:
Weird argument. It strikes me that a lot of the media commentators on this issue have never spent that much time practicing law within a major law firm. Specific to this piece, the idea that the firms are taking these cases to “look good” strikes me as somewhat absurd and not susceptible to proof except in one way (which I’ll get to in a second). As others have said, this wasn’t even the point Liz Cheney was making.
Law firms are not monolithic entities. I’m sure that some of the lawyers working on these cases were asked by superiors if they wanted to take the work on and that choice, in and of itself, is a complicated one. On one hand, you know on some level that if you turn down the work, most at the firm will respect the choice. On the other, you know that not doing the work could potentially have some impact upon how certain partners view your work and potential for progressing within the firm. This is just a small side point, not really pertinent to the argument at hand but worth thinking about before labeling anyone whose name appears on a brief as a terrorist sympathizer. As to the taking on of the work, I’m sure the coordinators of a particular firm’s pro bono work have to abide by that firm’s rules of taking on pro bono representation. But, it’s not necessarily the case that every partner would have to sign off on the work or that a vote would be held of either the partnership (almost certainly not the case) or a management committee of partners. Which is all just a complicated way of saying that the firm, as a firm, may not have even been very supportive of the effort.
But, I think the truest test of whether a given firm took work “to look good” – is to look to see whether any of these firms are actually advertising their involvement as an inducement to clients or even attorney hires?
March 9, 2010, 1:05 pmCrazyTrain says:
Shorter Stewart Baker: By calling DOJ “the Department of Jihad” and referring to seven DOJ attorneys as the “Al Qaeda Seven”, Liz Cheney was simply trying to make a point about allocation of the limited pro bono resources of lawyers. That people are accusing of her of bad faith is unfair.
March 9, 2010, 1:13 pmCrazyTrain says:
Yeah, what a wild hypothetical!! The ACLU has done pro bono work for the KKK, and there are former ACLU lawyers all over the place in government, including on the Supreme Court.
March 9, 2010, 1:16 pmGuesty says:
I’m really shocked that anyone would defend Liz Cheney and that commentators here are doing such a shoddy job of defending these attorneys. These men and women were heroes. Top attorneys, they chose to take great personal risks to defend the rights of the unpopular. These choices were made in a political climate where smears and innuendo like the type we’re seeing here was common throughout the political spectrum. Where people were running to embrace the flag so hard that nobody thought twice about trashing civil liberties.
The Bush DOJ hired incompetent attorneys using non-meritocratic ideological hiring practices for civil servants. The same people who lauded the hacks of the past are now attacking Supreme Court clerks and top legal minds who were willing to put their careers on the line for justice and now want to serve our country. Liz Cheney and Bill Kristol ought to lose all credibility for future positions held after making such a preposterous claim and running such a despicable ad. Of course, IKOYR.
March 9, 2010, 1:27 pmDangerMouse says:
These men and women were heroes. Top attorneys, they chose to take great personal risks to defend the rights of the unpopular. These choices were made in a political climate where smears and innuendo like the type we’re seeing here was common throughout the political spectrum.
HA! Too funny… Smears and innuendo? Please! They had wine and cheese parties where their smug lib friends were begging to get in on the action, anything to stick it to Bush and Ashcroft. They were fetting it up with the rest of their limousine lib snobs in self-congratulation parties where the only rule was that the more offensive and daring you were, the better you were.
They took “great personal risks.” Yeah, sure. So great that they were lionized by the New York Law journal, the American Lawyer, and a bunch of other industry rags.
However, notwithstanding all that lunacy, I’m convinced. I’m convinced that having a person who is ideologically opposed to something they’re supposed to enforce is no problem whatsoever!
Bring on the Operation Rescue lawyers and put them in charge the federal laws enforcing abortion-mill access. I can’t wait to see all you libs defend that.
March 9, 2010, 1:38 pmJonathan Witmer-Rich says:
Stuart makes two main points:
1. The Guantanamo Detainees already had lawyers, so they did not need new ones. (“Every one of the Guantanamo detainees already had a military defense counsel, paid for by the government.”)
2. Thus the lawyers were not volunteering to help out clients with no legal representation — they were volunteering to sign on to high-profile legal work. The fact that the detainees already had competent counsel, Stuart implies, suggests that the lawyers’ motives for volunteering might not be so pure and selfless.
The problem is that point (1) is false. Only the detainees who were charged in a military commission had military lawyers. Out of 750+ detainees, 11 were charged in military commissions. Thus the remaining 740 or so had NO LAWYERS, period.
Of the DOJ lawyers who previously worked on detainee cases, the only one I could identify as having worked in a military commissions case was Neal Katyal, now Principal Deputy SG. Of course Katyal’s prior work in Hamdan was well known when he was appointed to the SG’s office. If Stuart wants to impugn Neal Katyal’s motives he should do so more directly.
As for the others, and the vast majority of volunteer lawyers who represent/represented Gitmo detainees, they did so because otherwise those detainees would have no legal representation at all. In fact, even with the broad and admirable pro bono work of many law firms and private lawyers, there were still many unrepresented detainees at Guantanamo.
I represented several of the Guantanamo Bay detainees as part of my previous job at the Federal Public Defender’s Office. Our office did not get involved in representing Gitmo detainees until August 2008. Why, in August 2008 (somewhat late in the game), was our office getting appointed? Because notwithstanding the efforts of human rights groups and pro bono lawyers to step up and represent unrepresented detainees, there were still many unrepresented detainees.
So, Stuart: now knowing that your first premise is completely wrong, does that change your views on the matter?
March 9, 2010, 1:44 pmSarcastro says:
This is why I am against prosecutorial discretion! If a prosecutor starts looking at the rights of criminals, then where would we be?
March 9, 2010, 1:44 pmKen Arromdee says:
When a lawyer chooses to defend Nazis (or accused terrorists), that’s not proof that he sympathizes with them, but it’s not nothing at all either; it’s cause for suspicion. Suspicion can be rebutted by extra information. We know that the ACLU is on the opposite side of the political spectrum from Nazis, so we have that extra information for Skokie.
Personally I think it’s unlikely that information will turn up showing that lawyers who defend Guantanamo prisoners are right-wing in the same way that the ACLU is left-wing; but if it did I would certainly agree that we can stop suspecting them.
March 9, 2010, 1:50 pmDangerMouse says:
That’s the best you can do, Castro? Fail.
March 9, 2010, 1:50 pmArbalest says:
I remember seeing, on September 12th or 13th or 14th, or .. . 2001, a televised random street interview of a guy, a 18-21y.o. art student, IIRC, who thought America deserved the 9/11 attacks. Anyone else remember the art student?
In the past ~8.5 years I’ve heard and read similar sentiments by more than a few Leftists. I can’t think of any others with similar sentiments; no centrist Democrats, Republicans or Conservatives. Am I truly alone in this? The previous link on this thread starts at beliefnet.com; is someone trying to use a misreading of the Bible/ numerology/ etc. to reveal hidden prophesy? Was the link a serious one?
.
.
I note that the term “Al Qaeda Seven” is used due to AG Holder’s reluctance to publish names of lawyers hired by him who had previously done work defending enemy combatants held in Gitmo. Perhaps the term is unfavorable, but it does reflect the most recent voluntary jobs of these lawyers. The term is not unearned.
.
.
Interestingly, while the enemy combatants held at Gitmo who had no lawyers were clearly without counsel, was there ever a need for them to have counsel? It seems that only those charged with some sort of crime needed counsel, and were in fact given proper counsel. This seems to be standard treatment for any combatant captured on a battlefield, and has been for decades.
Where is the law, ruling, treaty, or other precedent that says being captured on a battlefield as an enemy combatant or legitimate prisoner of war, without being charged with a crime, requires access to legal counsel?
.
.
Finally, from my previous post (and implied in the video):
“But the AQ7 represented many enemy combatants, and implicitly had access to privileged information. I suppose that the AQ7, to avoid being disbarred, are likely to self-regulate their case prep and motions … wait …”
Both Holder and the AQ7 knew their job descriptions; did they see no conflict or at least potential? Is there truly no conflict? How do we, the American People, know this? Without names of the AQ7, it seems impossible.
How do we know that the AQ7 lawyers will or can vigorously prosecute the various enemy combatants held in Gitmo? Is there a chance that selecting the AQ7, who might have prior restraints because of immediately previous work, constitutes an attempt to “preclude” a certain set of results, or limit the scope of evidence, charges, etc.?
Recall the response of the DoJ under Eric Holder to the Philadelphia NBPP case; the DoJ had a win, and ……
Then there’s the attempt to try KSM in New York. This looked exclusively political from Second One, and was justified as a way to show America’s dedication to fairness, justice, rule-of-law, etc. But look at what’s happening.
Many Americans are worried that some foreseeable and preventable legal mistake (double-jeopardy, etc.; the usual “technicality”) will set KSM free. We also see the recidivism rate of those released from Gitmo.
March 9, 2010, 1:58 pmDavid Schwartz says:
That suspicion, however, is rebutted in this case by the fact that there were critical issues of law at stake that were unsettled. A mere interest in seeing that law gotten right would explain the desire to take those cases.
March 9, 2010, 1:59 pmSarcastro says:
“When a lawyer chooses to defend Nazis (or accused terrorists), that’s not proof that he sympathizes with them, but it’s not nothing at all either; it’s cause for suspicion.”
I know I’m now suspicious that those seven lawyers are secret Jihadis! Also that defense attorneys are all secret criminals.
Because civil rights for bad guys is much worse than some kind of consistent rule of law. Defending folks I don’t like proves (sorry ‘provides suspicion of’) some kind of moral failing that should keep certain lawyers out of the DoJ!
Also,
“We know that the ACLU is on the opposite side of the political spectrum from Nazis, ”
You really need to get with the ‘Liberal Fascism’ program. Everything bad is liberal. This includes Nazis and Jihadis.
March 9, 2010, 2:00 pmCharleyCarp says:
To Jonathan’s point, I would add that military lawyers sought the assistance of civilian lawyers either because, and I believe this was the case with Prof. Katyal, their appointments limited the scope of their representation, or (and this might be “and”), as was the case with Omar Khadr, it became a question of Supreme Court advocacy.
DangerMouse gives the game away: this isn’t about values or sympathy with Al Qaeda, it’s simple stupid partisan warfare, with a large dose of resentment thrown in.
March 9, 2010, 2:11 pmDangerMouse says:
You really need to get with the ‘Liberal Fascism’ program. Everything bad is liberal. This includes Nazis and Jihadis.
Well, at least we can agree on that.
March 9, 2010, 2:14 pmCharleyCarp says:
Arbalest, on what battlefield was Lakhdar Boumediene captured? Fouad al Rabia? Arkin Mahmud?
March 9, 2010, 2:17 pmDangerMouse says:
Charley, I did say that these libs convinced me. That means that Operation Rescue lawyers get to enforce the federal abortion laws. Right?
March 9, 2010, 2:18 pmCharleyCarp says:
And, Arbalest, on the issue of whether there should be civil trials, let me ask you two simple questions: Where are David Hicks and Salim Hamdan right now? Where is John Walker Lindh?
March 9, 2010, 2:21 pmsubpatre says:
Travis Ormsby wrote:
Travis summed it up well; and while I’m normally not a fan of the slippery slope argument, the
BushObama administration’s idea ofexpansiveexecutive power seem to involve the ability topick upblow up with a missile any person, anywhere in the world, regardless of citizenship, andhold them indefinitelykill them on the mere accusation (without need for proof) that they were involved in the “Global War On Terror.” Given how often Patriot Act provisions have been used against people not connected to terrorism in any way, that power could easily be applied to many more people than the couple hundred sitting in Gitmo.It’s very much a principle worth fighting for, and I’m not sure about the values of anyone who thinks it isn’t. Like the lawyers that defended Gitmo prisoners who —now deathly silent as Hellfire rains on brown people half a world away— are now cozying up for government positions.
March 9, 2010, 2:25 pm¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯
Tell me it’s not politics. Tell me it’s not payola. I dare you. Just don’t tell me those attorneys care anything about morals, principles, or values.
Arbalest says:
CharleyCarp: I suspect that you can Google quite well. Fortunately, none of these men were captured on a part of the battlefield similar to that on which Nidal Malik Hasan was captured
March 9, 2010, 2:29 pmSarcastro says:
subpatre‘s point just destroys the opposition! Cases involving the rights of detainees being held under American control have exactly the same implications as the rights of foreign civilians on the battlefield.
And of course liberals love this and are totally silent about the drone attacks, cause they are all hypocrites!
http://www.google.com/search?hl=en&client=firefox-a&hs=Ah5&rls=org.mozilla%3Aen-US%3Aofficial&q=liberals+protest+obama+drone+attacks&aq=f&aqi=&aql=&oq=
[I'd link actual examples, but I can't get the hyperlinkation to work at the moment.]
March 9, 2010, 2:30 pmCharleyCarp says:
Subpatre, I can’t imagine many of the GTMO lawyers I know disagreeing with you about the lawfulness of the targeted assassination policy. Do you know of a potential plaintiff with standing to bring a challenge to it, and an interest in doing so?
Your political point is belied by the fact that the habeas cases, and private lawyers involvement in them, did not end on January 20, 2009. Ask a GTMO lawyer how his/her interest in the litigation has changed with the change in administration?
March 9, 2010, 2:33 pmCrazyTrain says:
Why let facts get in the way of a chance to libel some dirty hippies? That appears to be Stewart’s m.o. (see also his constant, constant resistance to anyone even questioning government surveillance policies by labeling them as “privacy zealots”).
March 9, 2010, 2:33 pmCharleyCarp says:
Arbalest, two of the three are out of jail now, having prevailed in court, and the third is going to be out in a few weeks (his impending release having led the Supreme Court to dismiss his appeal). I don’t suppose this suggests to you, or anyone else taking the Know Nothing side in this discussion that maybe trying to apply ‘captured on the battlefield’ rules to people who were not, ever, on a battlefield might not be a good idea.
Are you suggesting that Maj. Hasan should have been arrested before committing any act (including agreeing to be a conspirator, if indeed he did) for which he could have been charged?
March 9, 2010, 2:40 pmConstantin says:
>>>>>
Where’s the original qualifier stating that “attacked” refers specifically to 9/11? Are any of the alleged terrorists at issue here at Gitmo because they were presumed to be part of the 9/11 plots?
For example, Ayers, a man of the Left if such a creature exists, presumably feels America “deserved to be attacked,” since he actually attacked America (and expressed no remorse for doing so, in an unfortunate coincidence, on 9/11/01 in the New York Times).
Anyway, I see that the original poster has retracted/qualified his statement, so this is a moot point.
March 9, 2010, 2:48 pmCharleyCarp says:
(In the interest of avoiding confusion, let me note that the “three” referred to in my comment of 2:40 are the three men from my comment of 2:17, not the three men from my comment of 2:21. The latter group includes two men who were adjudicated guilty by commissions, both of whom are now free, and a man so adjudicated in a federal court, some years earlier, who has many years left to serve on his sentence.)
March 9, 2010, 2:51 pmCharleyCarp says:
Tell me it’s not payola. I dare you.
I’ll take that dare. Please describe the payment received by Wilmer, Bingham, Allen & Overy, and Debevoise.
March 9, 2010, 3:00 pmDangerMouse says:
Hey Chuck,
I don’t know about those firms, but S&S has huge business in Dubai and other places in the middle east, and their involvement had major benefits in terms of appreciation from their Arab clients.
March 9, 2010, 3:08 pmArbalest says:
CharleyCarp:
.
From Wiki (just to be sure)
.
Salim Hamdan, captured during the Invasion of Afghanistan (at the time a battlefield), etc., etc., released to Yemen. It seems that there’s a problem with Al Q. in Yemen …… where Hamdan is.
.
David Hicks (25 March 1929 – 29 March 1998) was a British interior decorator and designer, famous for his employment of bold, shockingly vibrant colours, for mixing antique and modern furnishings and contemporary art for his famous clientele ……
He’s dead? (Famous potential clients, whose tastes run to bold, shockingly vibrant colours, now find their position in the avant-garde in grave doubt)
.
.
John Walker Lindh (literally captured on a battlefield) is currently undergoing training at one of America’s better gladiator schools. Perhaps next time he will at least be man enough to tell one of his fellow countrymen that there’s a riot brewing, and some of the rioters are armed.
.
Mike Spann is still dead.
.
.
“Are you suggesting that Maj. Hasan ……“
Many people are suggesting that Maj. Hasan should’ve been handled in some way; based on the news reports that we now have, are you suggesting that he was not a clear and present danger? How many people did he kill? At least one of them never got the chance to see the light of day or breathe air. Are you okay with this?
.
.
Now it’s your turn Counselor, have a go at my previously posted topical questions, please try to stay on topic and answer directly.
To refresh your memory:
1. How do we know that the AQ7 lawyers will or can vigorously prosecute the various enemy combatants held in Gitmo?
2. Is there a chance that selecting the AQ7, who might have prior restraints because of immediately previous work, constitutes an attempt to “preclude” a certain set of results, or limit the scope of evidence, charges, etc.?
FWIW, it seems the no one else is going to even try.
March 9, 2010, 3:10 pmStewart Baker says:
There are a lot of thoughtful comments here, and I’m usually content to let the debate go on around me once I’ve had my say. But I think I should acknowledge the force of Jonathan Witmer-Rich’s argument that the detainees didn’t — by and large — have counsel for their habeas petitions, so they would have gone unrepresented by counsel if not for pro bono lawyers. It’s worth noting, though, that a lack of paid counsel is pretty much true of all habeas petitioners. So the folks who took on the Gitmo detainees made a decision that they’d rather represent those people for free than ordinary prisoners who also want free habeas representation. I think it’s likely that they made that decision for the mix of self-interested and principled (or ideological) reasons I lay out in the post. And I still think those reasons tell you something about the lawyers that made that choice. (I’m not persuaded by the suggestion in a couple of comments that associates may have been dragooned into these cases against their will. That’s not my experience either as an associate or a partner. Pro bono costs firms money, and if an associate prefers paying clients to pro bono clients, very few firms will force the associate to do the pro bono work. I think that would go double if the associate had a values-based objection to the work.)
March 9, 2010, 3:14 pmRowerinVA says:
Cheney’s ad is out of line. That needs to be said, and various VC people have signed their names to a letter saying it. To the extent she started with a kernel of a point — which at least some of you concede — she far overdid it. And she made what is pretty obviously a political mistake, which is to overreach so greatly that she made the criticized lawyers into victims who are now being defended by their normal adversaries, and who arguably are better off for the criticism. Oops.
But that’s not very interesting. What’s interesting is the extreme positions taken in the comments (not so much by the original post). I’m puzzled by many of the above posts. Are commenters saying that:
As I read a number of your posts (and posts in the previous two thread on this subject), some of you seem to be agreeing with one or two of these propositions. I wouldn’t agree with any of them.
Does anyone want to defend one of the four propositions above? That’s the nub of this debate, isn’t it?
I know many of the detainees’ lawyers. I might even be one. And based on my limited sample, I’d say nearly all of them on a personal level support the legal analysis they are advancing (bear in mind, there are many cases — supporting your client’s case doesn’t mean you are supporting another’s). Many also support certain detainees on a personel level (usually because they think such detainee(s) are innocent, but sometimes on “their involvement was exaggerated,” “they’ve changed,” or “one man’s terrorist is another’s freedom fighter” grounds). Which I don’t find surprising, any more than I find it surprising that most school-choice attorneys support school choice, most abortion pro-choice attorneys support abortion pro-choice, and most ACLU attorneys representing Nazis in free speech cases think that the free-speech analysis they are advancing is correct.
March 9, 2010, 3:15 pmSarcastro says:
Proof by supposition is the best kind of proof! Especially when the supposition is some sort of pan-Muslim jihadi conspiracy!
March 9, 2010, 3:19 pmorca says:
Well, Dick Cheney, who did big business with Iran while at Halliburton, did remove Iran’s biggest enemy when he went to work for the government. So…maybe.
March 9, 2010, 3:21 pmSarcastro says:
[My position is thus:
Choosing to support someone pro bono bespeaks some ideological support for the arguments one plans to make, but by no means every argument that ends up being made.
You don't like their legal argument? Fine, but that doesn't mean it's appropriate to argue they may be Unamerican, or that they cannot do certain jobs. Any arguments in that direction that should be based on what they are actually doing, not what you are suspicious they may do.
To attempt to blackball lawyers who defend folks you don't like is populist crap. To attempt to turn such demagoguery into a legitimate concern is being an apologist for the lowest kind of partisan tactics.
You get the right to say it all, of course, but I get to judge you for it, and also mock you.]
March 9, 2010, 3:29 pmSarcastro says:
[So yeah, lawyers who did pro-life briefs are not presumptively forbidden from taking a job where defending planned parenthood is part of the job-description.
Should they start demanding lists of women who have gotten abortions and publishing doctor's names and refusing to prosecute violence or some such, then you have an issue.]
March 9, 2010, 3:33 pmArthur Kirkland says:
Just as I think your contributions to this blog tell us something about you, Mr. Baker.
I would not use that point to slur your entire firm, however, or every Conspirator.
March 9, 2010, 3:36 pmDon de Drain says:
I’m not saying that Liz Cheney is a fascist authoritarian because she took actions which undermine the ability of people who are accused by the US government of doing bad things to get access to attorneys and courtrooms in an effort to make sure that the government was not mistaken in claiming that they did bad things. Nor am I saying that Stewart Baker is a sympathizer of fascist authoritarians because he tries to take the edge off of what Liz Cheney was doing, while getting his underlying facts wrong. I’m just saying that this is a much harder question than critics make it out to be.
Of course, what I wrote above is complete and utter horsepuckey. So is Stewart’s post.
March 9, 2010, 3:40 pmJoseph Slater says:
Ken Arromdee writes: While it’s silly to suggest that the lawyers sympathized with the terrorists in the sense that they’d go to Afghanistan and fight for the Taliban, it’s a lot more plausible that they had sympathies that were lesser, but enough that we should worry about them being in the Justice Department.
There is the nub of our disagreement. I don’t think it’s at all plausible to think that the lawyers were sympathetic to the political, religious, social, or military goals of the accused. I know some of these folks, and I can tell you they aren’t. Indeed, the picture painted by Cheney and some commenters is counterintuitive: a bunch of wine & cheese consuming liberals sympathetic to the cause of violent religious extremists? I don’t think so. They are folks who saw the government overreaching its proper authority. One would think libertarians and even conservatives might share that concern. So no, I’m not the least bit worried about them being in the Justice Department.
March 9, 2010, 3:41 pmCharleyCarp says:
Arbalest, do you think military commissions entertained charges against deceased interior designers? That certainly demonstrates that we should be using them!
Seriously, on to your questions. Conflicts analysis is, as I presume you know, pretty fact dependent. Prof. Katyal’s work on behalf of Salim Hamdan is very unlikely to create a conflict. The military commissions system he argued was unconstitutional was so found by the Supreme Court, and replaced. I do not know his views of the new system, but from his published articles on security courts, I think it’s fair to say that he’s not an implacable proponent of district courts as the only place a case can be adjucicated. The lawyers who represented Boumediene before the Supreme Court were arguing that the Military Commissions Act amounted to a suspension. They prevailed, and the prior Administration accepted that ruling. Lakhdar Boumediene is living in France, and I don’t see how a conflict can be assumed. You can go down the line, but the simple fact is that the particular lawyers at issue came into GTMO litigation at the highest levels, and mostly they prevailed. Their positions are the law, and enforcing the law (to the extent that any of them are actually involved in enforcement) doesn’t create a conflict at all.
These lawyers were not arguing that the attack on 9/11 was justified, or that persons who can be charged with crimes should not be charged, in some venue at least. You can read their briefs and see what the positions actually were. When you do so, you can see that the conflict issue is a red herring. The point is calling political enemies traitors.
March 9, 2010, 3:48 pmRPT says:
“Arbalest:
1. How do we know that the AQ7 lawyers will or can vigorously prosecute the various enemy combatants held in Gitmo?
2. Is there a chance that selecting the AQ7, who might have prior restraints because of immediately previous work, constitutes an attempt to “preclude” a certain set of results, or limit the scope of evidence, charges, etc.?”
Let’s start with the basics.
1.a. None of the “Detainee 7″ are USA’s as far as I know and thus would not be part of any USDC prosecution team, assuming that there are any civil prosecutions.
1.b. None of the “Detainee 7″ are JAG’s in any service as far as I know and thus would not be part of any military commission prosecution team.
2. Assuming that, notwithstanding 1.a. and b., some of the “Detainee 7″ are involved in some prosecution somewhere, and are not conflicted out by virtue of their prior representation, how would this happen? Would they withhold evidence? Would they tank the case by doing less than the proper job, right in front of the court/tribunal and defense lawyers? Can you put your hypothetical in some real world lawyer context?
March 9, 2010, 3:52 pmzuch says:
As you should know, the vast majority of those in Guantánamo were being held indefinitely without being charged or afforded trials [in fact, this absence of recourse to courts was one of the issues being litigated] and many weren’t even “enemy combatants”.
And why do you seem to think that all these lawyers are in positions in the DoJ where their responsibilities will be to prosecute any such detainees?
Cheers,
March 9, 2010, 3:56 pmTracy Johnson says:
I would contend the lawyers are in reality drawn to the Guantanamo Bay golf course.
March 9, 2010, 3:57 pmzuch says:
… which error of fact kind of blows a huge gaping hole in your whole post (and credibility).
You say:
But then you criticise (or impugn the motives of) those that would actually ensure they had that right. If everyone heeded your (and Cheney’s) admonishments (or were scared off by such), then the detainees would still be in the same place, even though they had such rights (I don’t suspect that al Qaeda was going to ship over a few lawyers to help them out, and for those unfortunates [the majority of the Guantánamo detainees] that weren’t al Qaeda, even that recourse wasn’t available).
Cheers,
March 9, 2010, 4:04 pmDon de Drain says:
I’m waiting for the attack on those traitorous FBI agents who conducted the security clearance investigations of those DOJ attorneys, allowing the attorneys access to classified information. Quick, now, ask for their names and start whining then the FBI does not give the names out.
Tracy Johnson –
I’ve never golfed on the Gitmo Bay golf course. If it is anything like the golf course I saw at Death Valley (not the fancy private course at the hotel, but the other one, near the campground), it is a blast. The scorpion trap on the 4th hole is lots of fun, and the sand traps have less sand than the greens do.
March 9, 2010, 4:10 pmKen Arromdee says:
“Liberals are like Nazis” isn’t the same thing as “liberals sympathize with Nazis”. It’s quite possible to be like the thing you hate.
March 9, 2010, 4:16 pmLaura(southernxyl) says:
One thing that possibly confuses some of us who Are Not Lawyers and are not accustomed to seeing things the way you all do, is that you have expressed at various times the fact that you don’t think a defense lawyer’s job is simply to see that the defendant gets due process, but rather to mount a vigorous defense and get his client acquitted if possible, even if he knows his client is guilty. Several of you told me that that’s the defense attorney’s job, and if it is, then it’s not really a stretch to say that these attorneys are trying to get terrorists turned loose to re-mount their attack on the US, right? Because the vigorous defense is not limited to clients whom the attorney believes to have no or questionable guilt.
It seems to me, and maybe some others, that y’all go back and forth about this: it’s the defense attorney’s job to try to get his (guilty) client acquitted, except when that’s excessively unpopular, and then it’s the defense attorney’s job to see to it that procedures are followed, irrespective of anything he’s doing for that particular client, and it’s wrong of anyone to suspect the attorney of helping terrorists. Hopefully I am simply misunderstanding.
March 9, 2010, 4:17 pmCharleyCarp says:
RowerinVA, I don’t like the word “always” — human behavior is too complicated for that. But I suspect that the lawyers in question — the 7 superstars (I mean really, look at their resumes!) who’ve gone to DOJ — probably do agree with the legal analysis they’ve offered. Was the first military commissions system unconsitutional? Did the Detainee Treatment Act retroactively deprive district courts of jurisdiction over cases pending before them? Was section 7 of the MCA a suspension? Was the DTA an inadequate substitute?
These are arguments about allocation of power between and among the branches of our government. That anyone would seriously argue that this has no application beyond the navy base (and its fine golf and folf courses) shows, in my opinion, a seriously deficient understanding of the holdings in these cases.
March 9, 2010, 4:25 pmCharleyCarp says:
Laura, I don’t think any of the lawyers in question were criminal trial counsel for people charged with crimes.
March 9, 2010, 4:29 pmSarcastro says:
[The American legal system subscribes to the adversarial system - the idea that the two are one and the same. In other words, that fairness is best reached by the tension of two sides each striving for their optimal outcome. Thus an attorney's duty to the integrity of the law is the same as a lawyer's duty to zealously advocate for his client.
My understanding is that Europe has a more investigative system, where the judge asks a lot more questions of witnesses, though there are still advocates for both sides.]
March 9, 2010, 4:33 pmKen Arromdee says:
They’re religious extremists, but they’re also anti-Israel, anti-Zionist, anti-imperialism, pro-third-world, anti-US-culture, anti-US-military, anti-Iraq-war, and anti-Bush. Leftists are often sympathetic to these positions, far more than right-wingers. So yes, it’s plausible that your cheese eaters are sympathetic to these guys to some degree.
March 9, 2010, 4:35 pmpc says:
IANAL, but could a lawyer clear something up for me? In the Hamdi case, wasn’t the government arguing that Hamdi had no right to file for a writ of habeas corpus? When a defendant usually files a habeas writ without council, the question is not whether or not the defendant has a right to file the writ. That seems like a pretty big difference. Am I missing something else here?
March 9, 2010, 4:39 pmLaura(southernxyl) says:
Sarcastro, then absent Charley’s distinction, if any of the represented prisoners are believed by their pro bono lawyers to be actual terrorists, the lawyers are in fact trying to get them sprung, right? There’s zealously advocating, as in, my client ought to have a Koran in his possession and be allowed to wash his feet, or whatever, and then there’s zealously advocating, as in trying to find a way to get him freed. It seems to me. But I don’t think that’s really what you’re saying, is it?
I’m not trying to defend Cheney’s video here, I’m trying to understand. There must be a distinction and maybe Charley’s is it.
March 9, 2010, 4:43 pmSarcastro says:
I think you should qualify this statement more! It might make it sound less like simple demonization of the opposition as anti-American.
i.e. “So yes, some might say it could be plausible that the cheese eaters to which you refer might be in some fashion sympathetic to some of these guys to some degree. Maybe.”
March 9, 2010, 4:45 pmben says:
Crime committed by a relative few “cause” politicians to everyone’s right to carry a gun. This does not mean that everyone “deserves” to have their rights restricted.
March 9, 2010, 4:46 pmSarcastro says:
[Yeah, the attorneys are trying to get them sprung, because trying their hardest to get them sprung (and then failing) is the best way to assure the rule of law for all people, regardless how evil.
It's like searching for weak spots in a fortress. You better try your hardest, even if you hope you will fail.]
March 9, 2010, 4:49 pmpc says:
Not necessarily. A lawyer can advocate for due process without wanting to spring his client. In many cases that was exactly what the lawyers in question were doing. The lawyers weren’t saying, “my client is not guilty.” They were saying, “my client deserves due process.”
March 9, 2010, 4:51 pmArthur Kirkland says:
A similar line of reasoning would generate the conclusion that, because right-wingers are sympathetic to Bill Kristol and his sidekick Liz Cheney, whose decade-long record is to be nearly always wrong about nearly everything, right-wingers rarely know what they are talking about.
Hey, wait a minute . . .
March 9, 2010, 4:51 pmbyomtov says:
It’s worth noting, though, that a lack of paid counsel is pretty much true of all habeas petitioners. So the folks who took on the Gitmo detainees made a decision that they’d rather represent those people for free than ordinary prisoners who also want free habeas representation.
By this logic you can criticize a lawyer who helps an accused murderer with a habeas petition on a pro bono basis.
“Gee, lots of people are asking for pro bono help and he chooses to help the guy who may have murdered three people? What does that tell you?”
How do you separate client from principle when the principle at issue is how we should treat a few hundred people held at Guantanamo? For all the grand talk on both sides, it seems to me that’s pretty much what’s at stake in the detainee cases. It’s not like a fourth amendment case, or a municipal employee free-speech case, where the principle you’re defending will affect tens of thousands of unknown litigants in a wide variety of future contexts.
Two responses:
1. I’d say the principle that the United States doesn’t hold prisoners indefinitely for no reason is well worth fighting for. You are taking a very narrow view of what is at stake.
2. What makes you so sure this is an isolated case? If we are going to be dealing with terrorists and insurgencies and what not in the future, the whole question of how we treat these prisoners, what the rules are, etc. will surely come up again.
March 9, 2010, 4:53 pmLaura(southernxyl) says:
Sarcastro, thank you for your serious responses.
March 9, 2010, 4:56 pmSarcastro says:
[No problem. In the past few months, I'm trying to focus my non-seriousness on the outrageous stuff, and join the fray seriously (As Ernestro?) when serious topics come up.
I used to try to seriously debate all in sarcasm-speech. It was difficult, and rude. Colbert I am not.]
March 9, 2010, 5:01 pmAnonsters says:
[I would also like to thank Sarcastro for enclosing his/her serious comments in brackets. Very helpful for identification purposes.]
March 9, 2010, 5:02 pmSarcastro says:
[Tried not doing that some. Had like four requests to change it back. Poe's Law is inviolable!]
March 9, 2010, 5:06 pmArbalest says:
Charlie Carp:
In reverse order:
“The point is calling political enemies traitors. ”
I take it then that you never read Kos or DU or Huff Po, or any of the other Leftist blogs. Step outside the world of Law & Legal Stuff and see what’s being said by the Left, particularly in the last 9 or so months, about “political enemies” and “traitors”. For example, try the archives at Hot Air; ignore the comments, scan the articles if you like, but look at the links to Reuters, Yahoo, AP and other news sources. I think you will not like what you find.
.
“Seriously, on to your questions. ”
Ok.
“Conflicts analysis is . . . ” not mentioned by me in any of my posts (anywhere, on any blog, ever) prior to this post.
Your comments on “Hamdan”, “Boumediene”, etc. are herrings of a red nature. On to my questions.
My questions have been reduced to asking about whether or not the AQ7 lawyers can and / or will prosecute the enemy combatants, as they (the lawyers) seem to have conflicts of interest due to prior work and may be precluded from certain areas. They are logical outgrowths of the Keep America Safe video and discussion surrounding it.
All I read are, literally, tu quoqe arguments, as though Pythagoras himself pronounced upon the AQ7 lawyers. Not buying. Neither is most of the American public.
It may be, and let’s assume this for the moment, that the AQ7 lawyers will in fact prosecute the enemy combatants as zealously as they defended them …… if they are allowed.
Holder wouldn’t release their names; why? Is there a chance that Holder’s appointment of them has limited or poisoned the case(s), no matter which venue? See next.
.
.
.
RPT:
“1a” and “1b” See following responses.
.
“2 . . . . . . . . and are not conflicted out by virtue of their prior representation, how would this happen? Would they withhold evidence? Would they tank the case by doing less than the proper job, right in front of the court/tribunal and defense lawyers? Can you put your hypothetical in some real world lawyer context? ”
Holder wouldn’t release their names. Why? As per this quote at Hot Air:
“Also, it’s not strictly accurate to say that the ad forced the DOJ to release the names of the lawyers. Fox News compiled the names based on an extensive review of court documents and then questioned the DOJ, at which point they confirmed the identities. ”
See response below.
.
.
.
Zuch:
“. . . the vast majority of those in Guantánamo were being held indefinitely without being charged or afforded trials . . . ”
So we gave these un-uniformed prisoners the benefit of the doubt and treated them as Prisoners-of-War, as per the Geneva Convention. My recollection is that WW2 German, Japanese and Italian PWs were treated this way, and only releases upon cessation of hostilities. My recollection is that none were given, asked for, or even expected, counsel. All of this seems to be standard. Why is there now an expectation of counsel for enemy combatants captured and held, but not charged with a crime?
“And why do you seem to think that all these lawyers are in positions in the DoJ where their responsibilities will be to prosecute any such detainees? ”
A selection of names of these lawyers, as reported by Fox:
“Joseph Guerra, now Principal Deputy Associate Attorney General at the Justice Department”
“Beth Brinkmann, now Deputy Assistant Attorney General in the Justice Department’s Civil Division”
“Eric Columbus, now senior counsel in the Office of the Deputy Attorney General”
“Jonathan Cedarbaum, now an official with the Office of Legal Counsel”
Real World context. These lawyers and the others are positions of significant influence and power. Check their resumes; they and their work histories do not seem particularly neutral or centrist. But they do seem like appointees whose names should be known.
March 9, 2010, 5:08 pmDon de Drain says:
Laura–
Good question. Here is how I see it. Once you represent someone, you must zealously represent their interests, but only within the scope of the engagement. You can agree to limit the scope of representation as part of agreeing to represent the client. And smart attorneys are very careful about doing that. You put the limitations in the rep agreement and, if you are working pro bono, put in writing the scope of your representation.
If you agree to represent someone in litigation, once you enter an appearance, you generally need court permission to withdraw from that litigation. While you can agree on divisions of labor among multiple counsel for a party, if you are the only attorney representing the client, you will be stuck with handling all aspects of that litigation.
n the case of criminal litigation, your job is to zealously represent your client. If your client chooses to go to trial, your job is to get an acquittal. And yes, if you believe that your client did what they were charged with doing, and the client will not plead guilty, your job is the same– get an acquittal. That situation happens in a small fraction of criminal cases, however, because most criminal defendants enter into plea bargains.
I have not been involved in any litigation relating to Gitmo, but my understanding is that most of the litigation has focused on persuading courts to give the detainees due process to challenge their confinement, as well as figuring out what process should be used (and whether the process being used was adequate). Some litigation took place in the context of “trials” before military tribunals, and some more litigation involved hearings before district courts.
So the work done by pro bono attorneys could have been only on the litigation over whether the detainees were entitled to some some of due process. Or it could have been on one of the “trials”. It could have been limited by a division of labor agreement among the attorneys involved. The possible variations for the work done each DOJ attorney are quite large.
I understand why people get upset about criminal defense attorneys trying to get an acquittal where they believe their client commited crimes. It is a normal emotional reaction.
But forcing the government to prove its criminal case beyond a reasonable doubt is the system we have. If the government messes up, a “guilty person” may go free. I prefer that system to a system where the government decides who gets thrown in jail, for how long, without having to prove guilt in open court, or where the government uses “enhanced interrogation” to get people to “admit” to their crimes. I have never gone to trial convinced that my client did what the government says they did. I hope I never end up in that situation, because it is an uncomfortable situation for most people, even seasoned attorneys.
Unless you have a better way to get things done, however, I think you have to accept the fact that, in a small number of cases, people who committed crimes will walk free after a trial in which they were represented by an attorney.
In the Gitmo litigation, many detainees were freed, either by the military on its own accord or after hearings. Some detainees are truly bad, evil people. From my perspective, you need to sort them out, and each person needs zealous representation during the sorting out process. Otherwise you end up with a situation where there are no checks on government power. That’s one reason why I detest “enhanced interrogation.” Besides producing unreliable results, it makes it more difficult to “convict” the truly evil, guilty ones.
So if you are going to have trials that are fair, where the government must prove whatever it needs to prove to lock somebody up (or to keep them locked up), you need to have attorneys representing everyone. Not just the people whom appear “innocent”, but everyone.
Hope this helps some.
March 9, 2010, 5:09 pmJC says:
Happy to see Mr. Baker is reading the comments as there are some good points being made. Since he addressed one of my points, I wanted to add an additional couple of cents:
I think he’s pushing my point too far. I’m simply saying that one can’t make broad generalizations about why certain people do the work (as Mr. Baker certainly does). I will say that although he says it wasn’t his experience, it was mine. (Maybe we simply cancel each other out.) The fact is that once a partner decides to take on pro bono work, he/she needs associates to do it. Period, end of story. Sure it costs money but ultimately once the decision is made, the representation needs to happen in an appropriately zealous fashion. In the firms which I worked, often there were calls for associates to do work on projects to which the firm has committed. The idea that associates get to state a preference to do work for billable clients is a nice one in concept but it would have been a pretty risky move at the firms where I worked. (Maybe this is just another way of saying that I wish I worked at Mr. Baker’s firm.) And I notice that he chooses not to address the question of whether firms are actually seeking to use the fact that they “look good” to appeal for clients?
One additional point, when Mr. Baker says that lawyers who represent folks at Gitmo are representing “avowed enemies of the U.S.” doesn’t that presuppose that they are actually so? And wasn’t the goal of these representations that folks need to be put into proceedings where they have a chance to either so admit or deny whether they were enemies of the U.S.?
March 9, 2010, 5:10 pmAnonsters says:
[Yeah, I can see that. Given that some of your non-bracketed comments at times approach the serious views expressed by other commentators. Oy.]
March 9, 2010, 5:11 pmCharleyCarp says:
I don’t read Kos, or DU, and only rarely HuffPo. I don’t find that sot of thing worth my time.
I’m sorry, I thought you were suggesting that certain appellate lawyers for Salim Hamdan and Lakhdar Boumediene might have a conflict of interest. I guess not.
As you know, none of these lawyers are trial counsel, there are no cases against their former clients, and their presence in the DOJ is not going to adversely affect any prosecutions.
Their names have always been public. What the AG declined to do was play a stupid game designed to slander fine lawyers.
You are mistaken if you think these men were treated as if they were prisoners under the Geneva Conventions. The comparison to WWII captives is ridiculous: captured German soldiers were not trying to get into court to argue that they had not been members of the German army. The better parallel is American civilians of Japanese descent, imprisoned based on ethnicity. Several of their cases went to the Supreme Court. You think they were pro se?
I’m out. See you later.
March 9, 2010, 5:20 pmCheckEnclosed says:
RowerinVA makes some good points.
Maybe the posters so far have not focused on one potentially significant distinction: That if person X is accused of doing something Really Bad it is one thing to want to defend person X in a fair trial to determine whether he is guilty, and another thing to want to make sure that person X gets to have a fair trial.
I think it a fair assumption that people who do work to make sure that person X gets to have a fair trial actually do believe in the principal that people accused of duing Really Bad things should get fair trials.
Also, suppose you are an associate at a large law firm expected to do a certain amount of pro bono work. Your choices are: 1)to represent poor tenants against landlords represented by run-of-the-mill lawyers in cookie-cutter landlord-tenant disputes, or 2)to represent Gitmo detainees against the cream of DOJ lawyers in high profile con-law cases that may well go to the U.S. Supreme Court. Which choice sounds like more interesting (and Resume-burnishing) work?
March 9, 2010, 5:40 pmJohn says:
How about some pro bono work for the Haditha Marines or the Navy Seals, all of whom had the heavy weight of the government coming down on their innocent American heads?
March 9, 2010, 6:06 pmAnonsters says:
Were they being held indefinitely without charge in a place that was designed to be a legal black hole?
Oh, right. They were prosecuted in accordance with the UCMJ and entitled to all the protections and rights afforded therein and by the constitutional provisions applicable to military members.
Guess you look silly now.
March 9, 2010, 6:20 pmMichael B says:
“These are lawyers who represented avowed enemies of the United States – for free – because they thought it made them look good. If you don’t share that view, she’s saying, maybe you don’t share their other views about how the justice system should handle terrorism cases.”
Precisely so (and EV and the VC is to be applauded for allowing a more probative view on the subject than has been presented to this point).
Liz Cheney’s group, with Bill Kristol and others on the board of directors, has not gone after these attorneys as such, i.e. as private citizens and attorneys in private practice. To underscore this fact, note well: they haven’t gone after any of the attorneys representing Gitmo detainees who have not been hired by A.G. Eric Holder and the current administration.
Rather, they have sharply criticized – via an indulgence in hyperbole, admittedly – the A.G. of the United States who has hired so many of these attorneys who fit this particular pro bono profile. No less than Andrew McCarthy has indicated the number is more than seven, more than nine, considerably more than nine.
Three things are primary, three things are elemental:
1) transparency in govt. is good
2) transparency in govt. is good
3) transparency in govt. is very good
That, together with open, unhindered public discussion and debate is the issue at hand, is the central and sole issue.
Finally, N.B., that we know, none of these attorneys volunteered to do pro bono work for our own U.S. military detainees, such as the three Navy SEALs who are being tried for being accused of a minor offense, accused by one of the terrorists who helped mastermind the murder and mutilation of four Blackwater USA security guards in Fallujah in 2004.
Priorities and choices made. Priorities and choices made are telling.
March 9, 2010, 6:28 pmleo marvin says:
If jukeboxgrad said that he’d be accused of smearing Republicans.
Even worse, they hired some of their own al Qaeda loving detainee lawyers. I assume everyone who’s speculating here about the sympathies of the detainee lawyers and wringing their hands about potential conflicts of interest in Obama’s DOJ did the same over detainee lawyers in Bush’s DOJ. If we didn’t hear the protests then, it must be because we weren’t listening hard enough.
At least we can count on Danger Mouse to put things into perspective with a helpful reminder that Obama is a Marxist and hates white people.
March 9, 2010, 6:37 pmzuch says:
One of the Model Rules of Professional Conduct (violation of which might bring sanctions including disbarment) is to “zealously [...] protect and pursue a client’s legitimate interests”. They are required to “mount a vigorous defense”, and if there’s a legitimate legal defence or argument for acquittal or leniency, to pursue it (if that’s what the client wants). Keep in mind that a lawyer may legitimately argue for acquittal if he feels that the state’s case is not legally adequate, even if he personally knows the client is in fact guilty. It is the state’s burden to prove the crime, whether or not the client committed it … and if they fail to do so, he should be acquitted (see, e.g., “OJ”).
FWIW, some lawyers do not ask their client if they’re guilty (and in fact tell them not to say anything about that). They don’t want to know.
Cheers,
March 9, 2010, 6:38 pmzuch says:
Actually, no, we didn’t. Mr. Yoo was a principal in setting the policy of treating them as outside the Third (and Fourth) Geneva Conventions.
Cheers,
March 9, 2010, 6:44 pmJC says:
It is telling that Mr. Baker equates the folks at Gitmo to habeas prisoners generally in prisoners throughout the U.S. The vast majority of habeas claims in the U.S. come from inmates who have already been tried and convicted by a jury of their peers. The Gitmo folks were captured and are awaiting (and in some cases demanding) that same trial. That he can’t appreciate this distinction or the fact that the vast majority of Gitmo inmates did not have military counsel makes me wonder why he’s worthy of the responses he’s gotten; he’s clearly not very familiar with the subject matter.
March 9, 2010, 6:46 pmJohn says:
Perhaps in the eyes of a principled bris eater who would never entertain offering his services pro bono to a US Marine.
But to this former grunt it speaks volumes.
Of course you did a fine job of constructing a strawman argument, that being that I equated US Marines being charged under UCMJ for crimes they didn’t commit with unlawful combatants being held for the duration for terrorist acts they did commit. Very principled of you. Congrats!
Now once again, how many of these lawyers represented the Haditha Marines of the Navy Seals pro bono?
And what ethos is it that prevents the public from knowing which public servants represented unlawful combatants?
March 9, 2010, 6:58 pmHerb Spencer says:
Thanks for this article. It has been my experience in 28 years of practice representing both plaintiffs and defendants; governments, corporations, and individuals; landlords and tenants; and pretty much all sides of most disputes, that Big Law firms who engage in – read, assign their associates to handle – “pro bono” work do so exclusively “because they want to look good.”
March 9, 2010, 7:10 pmDavid Nieporent says:
Laziness, apparently, since it’s a matter of public record. But don’t you mean alleged unlawful combatants?
Why did they need pro bono representation when they already had representation?
March 9, 2010, 7:17 pmArbalest says:
Zuch:
Perhaps I was too brief in my Geneva Convention comment.
We gave the Gitmo detainees sanitary living conditions, medical care, sufficient food rations (some gained weight!), etc.
We did not simply shoot all non-uniformed combatants. We have not starved any; they’re likely much better fed than at any time in their lives. We haven’t worked anyone to death; in fact, none of the detainees have to work at all.
Sounds very Geneva-ish to me.
We did waterboard and stress several. KSM cried like a little girl. As a result, we caught a few more bad guys, and many acts of terror never happened.
If you or anyone else can, please name the type(s) of motions, subpoenas, writs, or other legal devices that would have been eve half as effective (or even effective at all).
Compare this to the way Daniel Pearl (and a few others) died, the use of electric drills by Al Q to question people, the use of civilian shields by both Al Q and the Taliban, ……
March 9, 2010, 7:33 pmDon de Drain says:
Get real. Cheney impugned the motives and character of all attorneys who represented the detainees. The ONLY reason Cheney raised questions about the motives and character of these DOJ attorneys was because they represented detainees. You’re free to pretend otherwise, of course, and to joint the partisan screed of Cheney and her ilk.
For those who say they are raising “legitimate” concerns about former detainee attorneys now going to work for DOJ, I would have much more respect for your position if a) the attorneys had not undergone a security clearance check before going to work for DOJ, and b) you voiced similar concerns during the prior administration.
And, BTW, from my perspective, it is also important to do pro bono work for clients whose cases are not high profile. There will always be a bunch of qualified attorneys willing to donate time to a high profile case. Not so for the case that is not so high profile. If there is criticism to level regarding choice of pro bono clients, it is that attorneys don’t spend enough time donating time on cases that are not high profile.
To me, it looks like the attacks are being done for political gain, perhaps to distract from other issues.
March 9, 2010, 7:33 pmJohn says:
Evidently you mean laziness on the part of Eric Holder since the peoples representatives in Congress asked him for that information. He of course demurred while being supported by all the principled legal types.
I meant unlawful combatants captured by the US Military who is the decider of that fact on the battlefield. Not you nor 5 Supreme Court justices who have substituted their judements on military matters in pace of COngress and the Executive.
Of course we can talk about a bunch of “alleged unlawful combatants” who have been released, returned to the batllefield and murdered even more innocents non-combatants. But those folks aren’t the principle, correct?
March 9, 2010, 7:37 pmJagermeister says:
It’s pretty clear that Andrew McCarthy isn’t above a little payback for being labeled part of the “American Taliban”. Given the mud slung at McCarthy, Yoo, Bybee, Haynes, and so on, I’d say that McCarthy, and Cheney by proxy, have all the rights in the world to call the lawyers at DOJ the “al-Qaeda Seven”.
Maybe those whining so vehemently now about the label should have thought a little deeper before unleashing all that invective against the Ashcroft / Gonzales DOJ. What goes around, comes around.
March 9, 2010, 7:39 pmLaura(southernxyl) says:
Don, it does help, thanks.
I have some further thoughts here.
1 – If we accept the tooth-and-claw adversarial view of the way we preserve our justice system, then I think we can’t be too squeamish about things like the AQ7 video. And we can’t be too squeamish about people reacting to it harshly. It’s all part of the same dance.
2 – Something I figured out years ago is that if you want people to react to a concern that you have, it’s best not to give them anything else to react to; because if they’re going to have to admit that they’re wrong, or change their ways, it’s too tempting to react to any peripheral you give them rather than to address your concern. So for instance, if you want your spouse to pick up his mess, you say, “please pick up your mess,” not “your mother must have raised pigs”. On the other hand, sometimes you have to be kind of dramatic to get attention to your point, and you may decide to do that, but then you have to weigh the possibility that your drama will be counter-productive to what you really want.
3 – Then when you look at something like this provocative video, maybe you ask yourself what the people who produced it really wanted. Did they want a witch hunt? Did they want to shine a light on a subject that they felt was getting swept under the rug? (so to speak.) Were they just throwing a stick at the spokes of the administration of the opposing party? Stirring up controversy to distract from something else?
…As to the vetting process for gov’t appointees: I don’t mean to take a cheap shot here, really – but I have to say that an administration that would put Timothy “TurboTax” Geithner in charge of the treasury department does not get my automatic assumption of thorough and conscientious vetting. Before anyone accuses me of partisanship, I’ll say that I would like questions to be asked, if they occur to anyone, about any administration’s sensitive or important appointments.
March 9, 2010, 7:42 pmwolfefan says:
Hi Stewart –
I hope you’re still reading this thread. Do you feel like responding? What makes this blog the most unique IMO is the interaction between Conspirators and commenters. Anyone can post something (regardless of it’s quality) and turn off their computer. The best Conspirators (again IMO) are those like Orin, Ilya, Eugene, Jonathan and David B who interact with those who disagree and respond to (at least some) of the questions or counter-arguments. Posts by Randy or Jim or some of the others are (with respect) of little value to me because it is in the dialogue that I learn. YMMV. I hope that you will be among those conspirators who takes seriously the fact that there are informed, intelligent and interesting commenters who can challenge you and help you grow, just as you can do for them. I grant that you have to sort through a lot of crap sometimes to find those commenters…
March 9, 2010, 7:55 pmepluribus says:
Guess I haven’t been paying enough attention, but are David Nieporent and David M. Nieporent the same or different persons?
March 9, 2010, 7:57 pmwolfefan says:
John –
You do know that the vast majority of the detainees were not captured on the battlefield by the US military, right? Not even the Bush administration claimed that to be true.
March 9, 2010, 7:58 pmJohn says:
Almost to a man all detainees at GITMO were processed through the US Military, you understand that right?
You also understand that not all detainees presented to or captured by the US Military redides at Gitmo, right?
The point here is that the SCOTUS has neither the power nor the expertise to decide such matters. And yet they did!
March 9, 2010, 8:09 pmDavid M. Nieporent says:
Well, my wife thinks there are two of me — one who she tells things to, and one who doesn’t remember those conversations — but I think there’s only one. I believe it just depends which computer I’m posting from (home/work/iPhone) as to whether the middle initial appears.
March 9, 2010, 8:12 pmleo marvin says:
The voice of reason chimes in.
March 9, 2010, 8:13 pmzuch says:
Yes. There’s that paragraph in the Third Geneva Convention that says that if the guy’s a [suspected] real baddie, you can torture him on occasion.
GC3 provides for many things that were not given to the Guantánamo detainees. Just go read it.
FWIW: allegations of mistreatment at Guantánamo go beyond just the “enhanced interrogation” of the three “high value” detainees.
Another FWIW: [Alleged] “positive results” from mistreatment are no defence to a violation of the Geneva conventions. And the Convention Against Torture explicitly bars torture for any reason whatsoever.
Cheers,
March 9, 2010, 8:32 pmzuch says:
Wow. Glenn Greenwald gets called a “libtard” by the RW foamer brigades’ favourite legal theorist (who also suggests novel methods of resolution of judicial disputes).
Cheers,
March 9, 2010, 8:37 pmDavid M. Nieporent says:
Article II, Section 3 gives the president the power to demand that cabinet officers provide him information; I don’t see anything in the Constitution that gives a member of Congress the power to make such a demand. Holder reports to the president, not to a member of Congress. (Of course, Congress could subpoena that information, but they didn’t do so, now did they?) In any case, since the information is a matter of public record, why exactly should Holder provide it? When you asked your parents for some basic information, didn’t they tell you ‘Look it up yourself, so you’ll learn something’?
Perhaps that ought to tell you something.
March 9, 2010, 8:57 pmDon de Drain says:
Laura–
I can’t agree that what Cheney did is an acceptable, normal part of the what goes on today. It is dangerous conduct that has the effect of discouraging attorneys from representing people who need to be represented. The system needs to have competent counsel to represent those charged with wrongdoing or those held in prison without recourse.
There is no basis for impugning as a group the attorneys who represented detainees just because they represented detainees. Just as there is no basis for impugning as a group attorneys who represent other types of clients that are not liked by segments of society.
Given the 1st Amendment, Cheney is allowed to speak. But so are we. Hopefully she will pay a political price for what she did.
I understand the need for theatrics to make a principled point. I have done that myself in the past. That was not what Cheney did. She did this for political advantage, perhaps to weaken Holder, but not to make a principled point. Even the likes of Ken Starr called her out.
Don’t get me started on Geithner. Remember, I’m a tax attorney. His “mistake” was not innocent. It was negligent or worse. Having him there is bad for tax administration, not to mention how he runs things. He’s very bad for the country, and I wish I could waive a wand and make him resign. Or at least force him to spend a month answering questions asked by Alan Grayson.
But vetting a cabinet level political appointee is different than vetting someone who represented detainees (who was probably already vetted by at least once by the FBI in connection with that work) and then goes to work for DOJ. I have been through the vetting process twice, once for DOJ. They are thorough. They talk to people. They can’t learn everything but they do a good job.
March 9, 2010, 9:00 pmjukeboxgrad says:
baker:
If there were sufficient “government resources on both sides of the detainee fight,” then why did the Bush DoD ask private firms to help the military defense lawyers? And are you claiming that it was their patriotic duty to decline to do what the Bush DoD asked them to do?
Do you mean the principle that when the DoD asks you for help that it’s patriotic to say yes?
=============
leo:
Naturally. And I assume all the tea partiers who now protest government spending were doing the same thing when Bush doubled the national debt, and when Reagan tripled it. Then again, maybe not. After all, IOKIYAR.
=============
danger:
When NARAL criticized Roberts for taking a position on the side of anti-abortion protesters, the result was that “many of NARAL’s allies in the abortion fight criticized the ad and called for NARAL to pull it off the air.”
So we don’t have to “wait” in order to know how “libs” would behave in that situation.
March 9, 2010, 9:03 pmjukeboxgrad says:
arbalest:
Wrong (link, link). There are also many we tortured to death. Your ignorance is boundless.
=============
jager:
He also isn’t above making shit up. Citing him doesn’t help your credibility.
=============
john:
As DMN has pointed out to you, the information was a matter of public record, so there was no “prevents the public from knowing.”
All this has already been explained to you in a prior thread. Showing up again and repeating the same disingenuous claim, as if you don’t know any better, defines you as a troll.
Anyone who manages to get me and DMN on the same side has probably taken a pretty untenable position. It’s only happened a few times before (J. Aldridge is a memorable example; link, link). You’re in rare company. Congratulations.
March 9, 2010, 9:04 pmCalderon says:
Well, it tells you that the attorneys who worked on these cases did not have an overriding personal objection to establishing due process rights for the detainees, but that’s about it. I don’t think that fact can legitimize an ad implying that they might share Al-Qaeda’s values, or even the lesser claim that they might in some broad sense shares those values.
Moreover, your own point about them having a mix of self-interested and personal reasons undermines the conclusion that their views were somehow sympathetic to Al-Qaeda. One can imagine myriad reasons the attorneys might have accepted these pro bono representations that tells you nothing about their views on the issues (except the lack of an overriding objection). Maybe they wanted to work on high profile issues, maybe they were interested in working on unprecedented cases with an opportunity to make new law, maybe they were interested in legal issues surrounding the military and saw these cases as a good opportunity to get paid to learn about those issues, etc.
As I said in another thread, I don’t have an issue with Fox or Keep America Safe seeking information, or arguing that because the attorneys argued for the detainees that they should be disqualified from government positions. It could be healthy to have arguments on those issues, and certainly both political sides in the US have argued against judicial and other appointments based on who the attorneys represented, but the Keep America Safe ad here did not approach these issues honestly.
One last point, I don’t think anyone is claiming that the associates were “dragooned.” But from your time as an associate and partner I’m sure you saw that if a prominent partner asks you to do something, it is strongly in your professional interest to do it. The word of someone like Dellinger can make a big difference in your bonuses, whether you become a partner, or even the number of shares you receive if you already are a partner. At least in the particular case described by Dellinger, there’s no reason to write off that particular influence.
March 9, 2010, 9:11 pmMoneyrunner says:
I have learned a lot about attorneys by reading these replies. They are brave souls who have not the slightest sympathy for the people they choose to represent on a volunteer basis. To even suggest that they would prefer to represent people whose views they agree with is a slander because attorneys are beyond the natural prejudices of ordinary mortals. They are motivated only by abstract issues of good and evil, always and everywhere slaying the dragons of oppression. Except when they accept money for their services. When they give it away, they are as pure as the wind driven snow, seeking only to burnish the outer edges of our constitutional framework.
Unfortunately these paragons of virtue are also delicate flowers who wither and die if their motives are criticized. They are simply shocked and outraged that anyone would view their actions in a political light because, as is very evident in the Volokh Conspiracy and the people who comment here, politics is the farthest thing from the minds of the lawyers who post and comment here.
Let the curtain be drawn over this shameful episode by Lynn Chaney and her low-rent attempt to drag these bold and fearless, though delicate and fair, members of the bar. Expel her into the darkest reaches to the night where Right Wing agitators snarl and growl around the efforts of the sainted One to bring fairness and justice to all the world.
Now on to passing health care for all. Do it for the children. Do it to save money. Do it to bend the curve. And tell oldsters like Frank Lautenberg to take a pain pill.
March 9, 2010, 9:54 pmJohn L says:
Many of the Gitmo detainees were not guilty of anything. Yet they languished for years. How can it not be a noble calling to try to help them?
The argument that no broader principle was at stake because there were only a couple hundred people a Gitmo is also wrong. One principle was whether the government can lock up innocent people without giving them any real chance to prove their innocence. If you allow it for a couple hundred, or even one, you allow it for anyone. We still cite habeas cases from 150 years ago. Were those petitioners part of a group of hundreds? Thousands? One? How does it matter?
The argument that Kristol/Cheney are trying have any kind of reasonable discussion is also silly. They are preying on fear and ignorance. Only someone who thinks he would benefit politically from their tactics would try to defend them.
March 9, 2010, 10:59 pmRicardo says:
If you’re going to argue by analogy and relate this video to the adversarial justice system, it seems to me that Cheney and Kristol are in the place of the prosecutor. Prosecutors in the adversarial system are bound by ethical obligations not to present evidence in bad faith. They also face various restrictions such as not being able to refer to the defendant’s previous criminal record, religion, membership in certain controversial organizations or other information that isn’t relevant unless the defendant makes it relevant.
In the same way we insist on certain standards in courtrooms and that irrelevant or prejudicial information not be introduced, we can insist that guilt-by-association smear campaigns against lawyers based on past cases they have taken on ought to be out of bounds. An adversarial debate or discussion doesn’t mean there are no rules of civil conduct at all.
March 9, 2010, 11:02 pmrpt says:
“John:
Perhaps in the eyes of a principled bris eater who would never entertain offering his services pro bono to a US Marine.”
Not a good word to misspell in this context. Anyway, I think Cheney and Kristol are the ultimate affirmative action legacy kids–perhaps the ultimate ch—–hawks as well–and I had no problem representing Mark Furhman after the tapes came out or other unpopular parties from time to time. The Sixth Amendment should not be subject to the popular whims of the time.
March 9, 2010, 11:08 pmrrr says:
And you as well, unfortunately.
March 9, 2010, 11:09 pmPink Pig says:
So ‘Al Qaeda’ is a pejorative. Who knew?
March 9, 2010, 11:09 pmRicardo says:
No one had to work for free to make sure the detainees had a right to counsel. Every one of the Guantanamo detainees already had a military defense counsel, paid for by the government.
This whole post starts with a false premise. Not all the cases taken on by these attorneys were Guantanamo cases. Relying on the Fox News article that everyone who wants to have an opinion on this ought to have read by now, the cases of John Walker Lindh, al-Marri, and Jose Padilla were among those handled by these lawyers, none of whom were detained in Guantanamo and all three of whom are American citizens. Padilla was denied access to a lawyer for nearly two years so this objection that all had government lawyers is simply wrong. The initial lawsuit filed on Padilla’s behalf was filed by someone who had never even met him in person or communicated with him.
Moreover, a military lawyer is not necessarily going to be a good appellate lawyer. Criminal defense in the military justice system and filing habeas appeals in the civilian system are two different specializations.
How do you separate client from principle when the principle at issue is how we should treat a few hundred people held at Guantanamo? For all the grand talk on both sides, it seems to me that’s pretty much what’s at stake in the detainee cases.
Again, simply not true as not all of the cases involved Guantanamo detainees. Moreover, the cases involve fundamental questions about the power of the U.S. to detain non-Americans outside the U.S. and what process — if any — they should be afforded to challenge their detention.
March 9, 2010, 11:20 pmmemomachine says:
Hmmmm.
Aside from all the hand-wringing the point behind Cheney’s position is that the DOJ refused to number how many former defense lawyers for terrorists were now working in the DOJ. Then the DOJ refused to name them.
Now the DOJ refuses to say what these lawyers are doing. What are their jobs? Do they have influence on policy? Are they in charge of policy concerning their previous clients?
Isn’t that something you’d want to know?
And frankly Obama’s DOJ is hardly a good example of transparency.
March 10, 2010, 12:01 amrpt says:
It would help if you would read all of the preceding posts before asking questions answered many times, both here and elsewhere. All of the information of which you speak is public record. Go check out PACER. Read about their jobs, as described in previous posts and you’ll know the answers.
March 10, 2010, 12:20 amDaniel Boulet says:
It seems to be really hard for some people to understand that different people are motivated by different things. Just because some people are primarily motivated by personal prestige does not mean that all people are primarily motivated by personal prestige. Some people really do take notions like justice and freedom and rights so seriously that they are prepared to risk “collateral damage” to their reputation if they happen to believe that these notions are at risk. As others have said, it is far from obvious that the military tribunal process either as originally defined or as amended later satisfy the traditional American notions of justice, freedom and rights. Without getting bogged down in specifics, the same can be said for other aspects of the “Global War on Terror”.
Frankly, I am not at all surprised that there were lawyers prepared to take on these cases simply because, for them, defending these notions by challenging the military tribunal process and other aspects of the U.S. approach to the “Global War on Terror” was “the right thing to do”.
I also simply do not buy into the notion that the mere fact that a lawyer has chosen to defend a VERY unsavory client should in any way open them up to the sort of innuendo that is “flying around” in recent days (even if the lawyer(s) in question happen to work for the DOJ these days). After all, even people charged with really serious offenses have the right to a vigorous defense. In fact, one could argue that if the various Constitutional rights are to mean anything at all then those charged with the most serious offenses must surely have said Constitutional rights.
March 10, 2010, 12:44 amKatherine says:
Shouldn’t you post a correction about the false statement re: “every one” of the GTMO detainees having appointed military defense counsel?
March 10, 2010, 12:45 amleo marvin says:
So smearing lawyers for defending people the Bush administration asked them to represent, that’s OK, but thinking it might be a good idea to find out what motivated people who authorized torture, that’s a communist, fascist, lynch-mob pogrom. Interesting calculus you got there.
March 10, 2010, 12:46 amArbalest says:
Seriously Counselor, do you ever try to get away with this sort of misquote in court? Does it ever work?
The context was Gitmo, not 2001-2004 Afghanistan / Iraq, each a time and place where a lot of angry and inexperienced people were trying to capture OBL and making bad and stupid mistakes, various (inexperienced and unqualified) US Senators were (incorrectly) proclaiming defeat, and the beginning of manufactured anti-Bush Hysteria (as are all of the data in your links).
The only “starvation” victim mentioned in your first layer of links is KSM:
“Detainees who had been subjected to the CIA’s detention program described being subjected to the regimen for weeks in a 2007 report by the International Committee of the Red Cross. Khalid Shaikh Mohammed, the architect of the 9/11 attacks, said he was not provided “with any solid food apart from on two occasions as a reward for perceived cooperation,” and fed only Ensure. “If he refused to drink then his mouth was forced open by a guard and the Ensure was poured down his throat,” the report states. Mohammed claimed to the Red Cross that his weight dropped from 78 kilograms, or 171 pounds, to 60 kilograms, or 132 pounds, after the month-long regimen of dietary restriction. If true, that would amount to a loss of about 23 percent of Mohammed’s body weight — more than twice the amount that, according to Bradbury’s memo, should have stopped the dietary-restriction regimen”
Note the operative phrases “Mohammed claimed” and “If true”, and their meanings. And KSM.
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To go further off topic:
“We haven’t worked anyone to death; in fact, none of the detainees have to work at all.”
“Worked to death”: see the not-too-long ago example of Cambodia under the Khmer Rouge, or the current North Korea, home of well known movie star and Bush-hater Kim Jong Il the Well-Fed-Yet-Short.
I wonder, does Dr. Steven H. Miles show as much concern for the people of North Korea? Did he write a book on the survivors of the Khmer Rouge’s experiment in Socialist whackiness?
March 10, 2010, 2:01 am.
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These tangential diversions of the discussion have been amusing, but perhaps a return to the thread topic is in order.
JR says:
Neal Katyal is where this asinine right-wing argument went off the rails for me. Here’s one of the smartest lawyers in America, who has been an impressive and forceful advocate for the US as the Deputy Solicitor General, and Cheney et. al would rather see him without that title because–and here’s the part that makes this so damn stupid–one time he argued for the constitutional rights of a group of detainees and WON. In other words, because he was right about the Constitution’s application in that case (at least according to the Supreme Court), he’s unqualified to serve in the DoJ. Cheney’s faulting him for not being wrong about the law. I think that is as damning an indictment of these uber-conservative legal philosophy as one can ask for: it isn’t fealty to the Constitution that matters, nor legal expertise, nor legal experience. It’s political views that count, merit be damned. It’s perverse.
March 10, 2010, 2:29 amyankee says:
Actually they did. Since the Bush administration considered the entire world to be the battlefield of the “Global War on Terror,” every detainee was captured on the battlefield, by definition.
March 10, 2010, 3:09 amyankee says:
I will never understand conservatives’ contempt for what they imagine to be the personal consumption habits of liberals. Apparently all liberals love cheese, while no conservatives do, and cheese-eating is a sign of moral degeneracy.
I also wonder how you know that none of the “Al Qaeda 7″ ever represented any Marines. I guess it’s because we know they’re traitors, and therefore they cannot have represented any Marines?
If you care, I’ve never represented any Marines personally, but I have represented Soldiers pro bono, and I think representing the detainees was an extremely laudable act in defense of liberty. I’m glad to have people who stood up to oppose authoritarianism in the Department of Justice, though sadly there’s no way of knowing if they did it because of a sincere desire to defend the rule of law or due to some more venal motive.
March 10, 2010, 3:29 amJeff Walden says:
Thanks for an opposing viewpoint, Stewart. From reading previous posts I had thought of this as fairly clear-cut, but your post at least provides grounds on which a reasonable person might hold the view contrary to that of Orin and Kenneth (and I’m guessing other Conspirators as well). I don’t think I’m convinced by your (semi-halfhearted?) argument, but it does give me a better understanding of both sides of the game. Thanks again!
March 10, 2010, 3:42 amRicardo says:
Here’s an article from 2009 about the apparently super-duper secret appointment by Obama of one of the “Al Qaeda Seven”: Tony West.
As I alluded to earlier, West did not represent any Guantanamo detainees but instead defended John Walker Lindh. Here’s what the article says about him:
Whose values does he share indeed? I really wish people would do some basic research on this issue before making statements like many of the above.
March 10, 2010, 3:44 amjukeboxgrad says:
arbalest:
You said “we have not starved any.” In response, I referenced our starvation policy, as documented in the OLC memos. Where is your evidence that this policy applied only in “2001–2004 Afghanistan / Iraq,” and not at other times and places?
Why are you suggesting that the decision to starve prisoners was made by “a lot of angry and inexperienced people [who] were trying to capture OBL and making bad and stupid mistakes?” The OLC memos document that starvation (and torture, of course) was official policy. Unless maybe you’re saying that the “angry and inexperienced people” include Bush and Cheney. Since we now know this:
That statement was approved by 11 GOP senators (100% of the GOP senators on the Armed Services Committee).
If you can’t click through to read what Bradbury said about “dietary manipulation,” that’s your problem.
We tortured many people to death, and the deaths are documented in detail by NIH, and those links can be found via here. The data presented by NIH is “manufactured?” Really? And where is your evidence to support that claim? What’s “manufactured” is your claim that something I presented was “manufactured.”
English translation: ‘please stop calling attention to my false claims, because I would really like to go back to doing this.’
================
katherine:
Should he? Yes. Will he? No. Because anyone disingenuous enough to scribble that falsehood would have no interest in unscribbling it (in a meaningful way; the mealy-mouthed backpedaling here does not qualify).
March 10, 2010, 4:38 amDavid M. Nieporent says:
Not only do you endorse the defamatory “Al Qaeda 7″ advertisement, but you manage to throw in some added defamation of your own. It’s Liz Cheney (*), not Lynn.
(*) Note the correct spelling of the last name of the former vice president of the United States.
March 10, 2010, 5:37 amMoneyrunner says:
Leo, my friend, and you are my friend, I am not smearing lawyers. Have I not referred to them as “brave souls” who are not for the moment affected by sympathy for the ones they represent or hatred for those who they oppose? With what part of my brief comments do you disagree?
And I said nothing about any pogrom in my post. Who would ever accuse anyone on the Left about conducting a pogrom? Everyone knows that pogroms are only conducted by Right Wing nut jobs. I once may have thought differently, but your arguments and those of the rest of the DOJ’s defenders have made me see the light. Now that The One rules, the Government is always on the side of truth and dissent is once again unpatriotic. To even question the purity of spirit of the DOJ is an outrage and must be suppressed.
Now on to the compelling need to pass universal health care …
March 10, 2010, 5:40 amMoneyrunner says:
David, I stand corrected regarding Liz Cheney’s name, but why do you assume that my agreement with you is not heartfelt? Why do you assume that the arguments you are making in defending the current administration have not made me see the light? Defending the guild with which we are associated has a long and noble history, has it not? Can’t you take “yes” for an answer?
Are not the members of this administration entitled to the presumption of innocence? These people are, after all, public servants, unlike the despicable John Yoo who aided and abetted torture and should be prosecuted, disbarred and expelled from the guild.
But can we get on to THE issue of the day …. Health care for all?
March 10, 2010, 6:09 amjukeboxgrad says:
money:
Sure it wasn’t Lon Chaney? As you can see, you are not the first to notice the resemblance.
As far as I can tell, you do indeed believe that “to even question the purity of spirit of the [Bush] DOJ is an outrage and must be suppressed.” As Leo pointed out, the Bush DOJ “hired some of their own al Qaeda loving detainee lawyers.” Oddly enough, I haven’t noticed any “outrage” on your part regarding those hires. But I think I know why: IOKIYAR.
Few things stimulate my appetite for popcorn as much as watching the likes of you accuse the likes of DMN of “defending the current administration.” More, please.
March 10, 2010, 8:33 amSarcastro says:
[Not so sure I agree. The tooth-and-claw system (which I am not too thrilled with myself, btw) keeps the tension internal. External pressures distort it. Indeed, I see an attack on the motives of the defense as effectively an attack on the system as a whole. That such attacks remain rare is a blessing]
March 10, 2010, 11:16 amSarcastro says:
This Moneyrunner guy is awesome. The best part is how he uses sarcasm as a shield as well as a sword, to cut off any attempts to engage him!
Check out how much he manages to prove:
See, some humans are terrorists, so asking whether Moneyrunner is can’t be wrong! If I were super clever, I’d add all sorts of other sarcastic stuff about how these humans are above reproach, drawing a false dichotomy between being angelic and being open to random accusations of terrorism! Then maybe some other purple prose, just for funsies, followed by some kind of health care joke.
That’s how really clever people roll.
March 10, 2010, 11:31 amPaul A'Barge says:
I don’t think the Al Queda 7 lawyers loathed their clients at all.
I think they agree with them.
March 10, 2010, 12:31 pmArbalest says:
Wrong again, Counselor.
The context is Gitmo: the thread topic is about Lawyers who represented enemy combatants held Gitmo; the sentence immediately preceding clearly establishes Gitmo as the context; my sentence “We have not starved any;” is punctuated by MY semicolon, not terminated by YOUR period (your “.” replaced my “;”; why? This isn’t intentional tampering, is it?)
Starvation policy? Ahhh, “bread and water”, a disciplinary policy that’s been in use for a CENTURY or TWO, and limited in US Military usage, etc. Just out of curiosity, and potentially for future use, can you cite a case where any US human rights activists have started litigation against this policy in, say, the 50 years between 1947 and 1997?
Somehow, you try to equate starvation with “dietary manipulation”. Intellectually dishonest.
I was expecting some major evidence from you, a dazzling demonstration of research–fu, like maybe pictures of 20,000 starving North Korean civilians (you know: STARVATION; ribs countable from 50m distance, pelvic bones visible, 2 or so inches shorter when fully grown than their South Korean relatives).
But no, even with a second chance, the only example you have is KSM, who “claims . . .”. –> Bupkus.
First, show me my writing where I made the claim (in your words): “this policy applied only in “2001–2004 Afghanistan / Iraq,” ”.
Further, I notice that your reading and comprehension skills are weak. My sentence “The context was Gitmo, not 2001–2004 Afghanistan / Iraq, each a time and place where . . .” clearly refers to the context of my 7:33PM comment. It seems clear that every other reader understood this; why not you?
“starve prisoners”? How about a list of names? The only one you’ve provided is KSM, who got force-fed Ensure. Can you show pictures or any evidence of Gitmo detainees (or even any detainees in Iraq or Afghanistan) who look like they are Somali refugees, and specifically as a result of US detention and policies? Or are you stuck with 10 or 20 ex-fatboys? Or are the ex-fatboys fatboys again?
And again, your reading skills fail you.
They include the various service members who committed the various acts mentioned in your previous links, and various Senators like Harry Reid, Hillary!. Oh, and one other ……
Tell me about the final outcome of the Abu Grahib episode. And try to cite post-2006 data this time, not the 2003-2006 stuff that seems to be missing one or two details. While you’re at it, let’s recall Rep. John Murtha’s (D-ABSCAM) comments (public and pre-trial?) about a few Marines (facing trial), and how things turned out.
“dietary manipulation,” again? See my “previous “bread and water” response. You are, yet again, evading the point: you only list KSM, general disciplinary policy (and apparently never challenged), and no satisfactory examples. Can you not do better than Bradbury? Equating “dietary manipulation” with starvation is intellectually dishonest. Alternatively, have you ever made the equivalence fly in court, or even mock court?
Regrettably, this part of my list wasn’t sufficiently clear. The anti-Bush hysteria was manufactured, and very many people are beginning to realize it miss Bush. The hysteria and the data you link are both from the 2001-2004 time frame (or perhaps 2001-2005 or 2001-2006).
I’m inclined to believe the NIH data is genuine, but given the comments by Reid, Pelosi, Murtha, and others (and I suppose we should “hide the decline” of government scientists, bureaus and published reports supporting AGW), well, there is this small, tiny lingering doubt that I just can’t shake. But we’ll call this one slipup on my part a hit on me.
But if we need to discuss manufactured claims, let’s start with the list of your claims about what I wrote. At what law school would your analysis receive a passing grade?
Perhaps if you could comprehend my writing, and respond directly (really, it’s only a C- effort) you might get a better discussion.
March 10, 2010, 12:46 pmjukeboxgrad says:
Maybe you think that no one will notice that you’re dodging the question I asked. Where is your evidence that Gitmo was magically exempt from the starvation policy articulated by OLC?
Lots of things were done over the last “CENTURY or TWO” that are no longer considered acceptable. Then again, maybe you are actually nostalgic for slavery. And in what magic GOP dictionary would “bread and water” be described as something other than a starvation policy (if it was actually limited in quantity; as imposed by the US Navy it is not)? And describing the CIA starvation policy as “bread and water” is giving them way too much credit, since a key part of their starvation policy was to eliminate all solid food. So “bread” is out.
Can you cite a time prior to the release of the Bradbury memo on 4/16/09 (link, link) when the public had access to an official government document describing a US starvation policy? Which prior publicly released document ever described such a policy? What would be the basis for “litigation against this policy” in the absence of evidence that such a policy existed? Where is your evidence that such a policy existed prior to 2001?
Welcome to the world of Arbalest, where war is peace, freedom is slavery, ignorance is strength, and torture is “enhanced interrogation.” And where starvation is “dietary manipulation.” Here’s what Bradbury said about our starvation policy (pdf; p. 7):
What would be the basis for expecting it to make “other techniques, such as sleep deprivation, more effective” if it was something other than a form of starvation? Why should a diet which leads you to lose 23% of your weight be described as something other than starvation? What do you think that number needs to be before you’re willing to call it starvation? 100%?
OK, I get it, you manage to sleep well at night by reminding yourself that it’s possible to find crimes greater than ours. How did your standards get to be so low? Next up, Arbalest will assert that Al Capone isn’t a thief because he didn’t steal as much as Bernie Madoff.
OLC told CIA that they couldn’t starve anyone else? Really? Please share with us your special unredacted version of the memos where that text can be found.
I guess it must have been a different Arbalest who said this:
Those words followed an exchange where you said “we have not starved any,” and I said we did.
Except that this sentence was not immediately preceded by your “7:33PM comment.” It was immediately preceded by an exchange where you said “we have not starved any,” and I said we did. So there’s nothing “clearly” about it. If your intention was to refer to your “7:33PM comment,” you should have cited text from that comment. Trouble is, you didn’t. Instead, you cited an exchange where you said “we have not starved any,” and I said we did.
Where is your evidence that the number of readers who “understood this” is greater than zero?
Why do I need a list of names? I have an official government document describing our starvation policy. Establishing the policy is wrong even if it’s not implemented. And why should anyone believe it was not widely implemented?
OK, I get it. So the people responsible for our war crimes include everyone except the senior Bush officials who ordered war crimes. Makes perfect sense. And how heartwarming to see the GOP concept of personal responsibility: blame the little guy. Or we could describe the GOP concept of personal responsibility this way: when your poor choices get you into trouble, always try to make someone else personally responsible.
I already told you what 11 GOP senators said “about the final outcome of the Abu Grahib episode.” They said this:
And they made that statement in 2009, so I did indeed “cite post-2006 data.”
Your brazen willingness to deny plain facts even when they are placed right under your nose is quite spectacular, even for here. And that’s saying a lot.
When losing an argument, try desperately to change the subject.
How on earth do alleged “comments by Reid, Pelosi, Murtha, and others” cast any “doubt” whatsoever on the extensive NIH records (link, link) of the people we tortured to death?
What you said earlier is this:
You didn’t say I “manufactured … claims about what [you] wrote.” You said “all of the data” in my links was “manufactured.” A more shameless falsehood would be hard to find (although Stewart Baker has given you some stiff competition). You have shown this much evidence that any data in any of my links was “manufactured:” none: Likewise, you have shown this much evidence that my “claims about what [you] wrote” were “manufactured.”
So you should either substantiate your false claims, or withdraw them.
March 10, 2010, 4:49 pmRandy C. Fella says:
Go fuck yourself you fascist assholes.
March 10, 2010, 5:17 pmleo marvin says:
Thanks to Jonah Goldberg I have no idea who Randy’s talking about.
March 10, 2010, 6:34 pmJohn says:
Did they teach you the difference in the meanings of ask and demand in law school? What exactly is the purpose of constructing that little strawman and then knocking it down?
As for why Holder should respond to Congress the answer is simple. This is the most transparent and open administration in history. I’m sure you’ve heard that before, no?
March 10, 2010, 8:16 pmJohn says:
LOL, you got me there partner but a typo not a misspelling. I’m a Catholic who grew up with a lot of Jewish friends and having attended a bris or two I got a laugh out of your correcting me. Thanks.
March 10, 2010, 8:20 pmMoneyrunner says:
The lawyers on this thread are so cute. Having won the battle for the hearts and minds of their opponents, they have to keep on arguing. Why? Here we have people proclaiming the innocence of the prisoners unjustly and inhumanely imprisoned at Gitmo, starved to death when they are not beaten to death, all the while having to witness their Holy Koran flushed down the toilet while being interrogated by infidel women acting provocatively while showing their hair. And I agree, having been awed by their evidence and innumerable links presented here.
And still they argue.
What I don’t understand is why these paragons of virtue, these brave and selfless defenders of all that is right and just, don’t want to proudly proclaim and even brandish their defense of justice and right? Why did even that fearless leader, Eric Holder, omit references to his amicus brief in defense of Jose Padilla while citing other brief in preparation for his confirmation hearings? An oversight I’m sure because the defense of accused terrorists Is obviously a mark of distinction; to refuse to do so would lead inevitably down the slippery slope of fascist totalitarianism of the kind we so narrowly avoided when the “Shrub” – who was appointed by a corrupt Supreme Court – was tossed out after the last election.
Why did AG Holder not call a press conference to proudly proclaim his decision to bring these lawyers into government service precisely because of their proven devotion to blind and equal justice for all? Is it because the “bitter clingers” shopping at Wal Mart would not understand the nobility of these acts? It’s a puzzlement.
One thing is still not clear to me. We know that the prisoners in Gitmo, the beaten, the starved the insulted are innocent. Why would the evil Bush administration only capture and imprison innocent people; sheer incompetence or simple evil?
March 10, 2010, 10:23 pmrpt says:
Circumcision is best done at about 8 days. It doesn’t leave a memory.
March 10, 2010, 10:49 pmArbalest says:
jukeboxgrad
Rearranging, unsuccessfully, for reading comprehension:
and later:
To be intellectually honest, the exchange was my 2:01AM comment pointing out that your 9:04PM comment was a “misquote” (to be generous) of my 7:33PM comment.
You, and anyone else who reads these comments knows this, and realizes that either (1) my 7:33PM comment was being discussed, or that (2) you were deliberately misquoting me. Trouble is, (1) makes your 4:49PM comment look like a deliberate mistake on your part.
Which is it Counselor?
And, once again, your last sentence above inaccurately quotes my original post. This looks to be deliberate on your part.
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Ahhh, a completely out-of-scope ad-hominem, and one that, looking in my magic GOP dictionary indicates, was ended by Abraham Lincoln (Republican), and with some opposition from the Democrats of the time.
You are, of course, having your friends read this thread, correct? You lose, Counselor.
Perhaps you might want to ask someone from Darfur, or Somalia, or . . . , places where starvation is clearly observable.
Recall that your link mentions, among other things, that KSM was given Ensure, sometimes unwillingly. I suspect that you don’t know what Ensure is. Ensure happens to be stocked by my local grocery store on shelves next to various protein drinks. It isn’t solid food, but if you read the label, you might notice the list and quantities of vitamins, minerals, etc. The taste isn’t particularly good, but if you have to choose between bread or Ensure, choose Ensure.
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Yet from your preceding paragraph this:
So, then, you are at least aware of UCMJ Article 15? How did you manage to miss my context? It was clearly typed:
“Ahhh, “bread and water”, a disciplinary policy that’s been in use for a CENTURY or TWO, and limited in US Military usage, etc.”
(bold mine)
Clearly: “a disciplinary policy”, “in US Military usage, etc.”. Why then do you ask clearly irrelevant questions? If you need help, ask.
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For brevity, everything in your post from: ……
…… through ……
First, yet another ad-hominem. You lose. Again.
Then your 23% comment: note that the article you cite repeats KSM’s claim, almost verbatim from one of you other sources (or is it the other way?), and note that in both cases both articles are careful to indicate that 23% is a calculation based upon KSM’s claim. KSM has a motive to lie, and everyone knows it. Did KSM really lose weight? Do you have any evidence? So far the answer is “no”, yet you repeat the 23% weight-loss claim as fact. This sounds like “manufacturing” truth.
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…… to
Yes, I sleep soundly at night. I don’t waste time pretending that waterboarding KSM, a man who plotted to kill ~2900 American civilians, is in any way comparable to Kim Kong Il starving his people. My career isn’t devoted to finding some reason, any technicality, etc., to get arrested and accused pimps, gang members, wife-beaters and the like back on the streets as fast as possible. Nor is it to find reasons to free enemy combatants captured on the battlefield, roughly 20% of whom have been found to have returned to the fight.
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I did not know that “ OLC told CIA that they couldn’t starve anyone else?”, nor have I said so.
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And to return to a previous point, even a 2nd grader can tell that (again, your words)
“this policy applied only in “2001–2004 Afghanistan / Iraq, ”
is NOT equivalent to, and does NOT mean the same as:
“The context was Gitmo, not 2001–2004 Afghanistan / Iraq, each a time and place where a lot of angry and inexperienced people were trying to capture OBL and making bad and stupid mistakes”
If you think the two excerpts are equivalent or mean the same, kindly stop evading the question, state which, and then form a complete answer.
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Others have posted since my post and not commented; a probabilistic argument, but perhaps we should ask.
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Attempting brevity again: Everything from ……
…… to
First, you keep equating “dietary manipulation” (making a bad grown man go to bed without dinner ‘cause he won’t tell us about his friends who want to kill more of us) to “starvation” (something people from). Based on the links you keep repeating, I’m not buying your moral relativism, moral equivalence, or whatever it is. You want us to believe it was widespread, yet you have at best 1 name and speculation. Try again.
So Reid’s, Pelosi’s and other’s statements about the War in Iraq being lost don’t bother you, ditto for Murtha’s comments. Even though they were clearly wrong at the time, and proven wrong later. No blame for them about emboldening Mookie al Sadr to send his followers to kill American soldiers? How many?
The GOP Senators; didn’t they make an Abu G. statement like you quote in 2007 or so? Or am I thinking of others, about the time the Abu G. Commander was relieved? Ok, ONE bit of post-2006 data. But the rest of your linked data on deaths listed 2001-2004 data; how about an update?
Reid’s and Pelosi’s (two very powerful government officials with many interests) statements over the last few months about the costs of ObamaCare (which seem to be turning out wrong again) coupled with the initial Abu G. claims, Murtha’s remarks about the Marines, ~655,000 dead Iraqis since the US overthrow of Saddam (wrong); call me a conspiracy nut, but I feel the need to “Trust but Verify” claims of atrocities committed by American Soldiers.
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Finally:
Count the number of tangents (i.e. subject changes) you’ve made. Remember to include your ad-hominems, and subtract my responses. You lose.
BTW, “Counselor”, “You Lose” and “Dave’s Not Here: LA Law version” don’t count, as they are accurate.
No, I was not sufficiently clear, but I clarified (~ all of it is pre 200x) and accepted the hit.
No, I’ve shown that you regularly misquote me, and do so in such a way as to change my clear (with one exception) meaning. Then there’s the 23% claim (unless you have new evidence; kinda late).
This is good advice. You should re-read all of my posts, yout posts, and start retracting.
March 10, 2010, 11:14 pmKevin P. says:
I call BS. I live in Austin, the liberal bubble in Texas, and have personally encountered at least 5 people, outspoken lefties, who unsolicited by me pronounced America to have brought the attacks upon itself by its own conduct.
March 11, 2010, 12:13 amKevin P. says:
Obviously, the evil Bush administration was simultaneously incompetent and evil!
March 11, 2010, 12:17 amzuch says:
I’d say the “you lose” comment is not substantive but conclusory, and not factual but rather (rather dubious) opinion. Perhaps you’ll get past that level of discourse when you graduate … from elementary school.
Cheers,
March 11, 2010, 2:04 amjukeboxgrad says:
arbalest:
No, you’re not “rearranging, unsuccessfully, for reading comprehension.” You’re making another feeble attempt at dodging the question. OLC described and approved our starvation policy. There are two possibilities:
A) Our starvation policy applied everywhere we kept detainees.
B) Gitmo was treated as exempt from our starvation policy, for some reason.
You said these words:
Did you mean “we have not starved any,” or did you mean ‘we have not starved any at Gitmo?’ Because if you meant the former, I have shown that the claim is false. If you meant the latter, then you must think B is true. Trouble is, you have shown this much evidence to support B: none.
Uh, no. You suggested that there’s nothing wrong with having a starvation policy because such things have allegedly “been in use for a CENTURY or TWO.” If being “in use for a CENTURY or TWO” is sufficient to justify something, then how does that same argument not justify slavery? I see that you have no interest in taking responsibility for the natural implications of the pathetic arguments you’ve been tossing out.
You seem to be claiming that the meaning of that word 150 years ago has some relevance to the meaning of the word today. Really? I find it hard to believe that anyone, even you, would make such a silly claim, but I can’t think of any other way to interpret what you wrote.
I missed the part where you explained how those places are relevant. Is this your ‘Capone isn’t a thief because he stole less than Madoff’ argument again? This argument doesn’t look less silly when you repeat it. On the contrary.
Yes, in amounts that ensured that he would lose 23% of his body weight. I missed the part where you told us what you think that number has to be before you’re willing to call it starvation. One more in a long list of questions that you’re persistently ducking.
Except that I’m not asking “irrelevant questions.” It’s you who is persistently making an irrelevant comparison. The “disciplinary policy … in US Military usage” says that “the amount of bread and water shall not be restricted” (pdf, p.186). It also says that this discipline may not be imposed for more than three days. A system where you can eat as much bread as you want for three days is what you call a starvation policy? This is comparable to a starvation policy that causes you to lose 23% of your weight? Really? Next up, Arbalest will claim that there’s no difference between taking a shower and getting waterboarded.
Which makes him completely unlike you, right?
Why are you manufacturing facts? Many of the people in Gitmo appear to have been innocent bystanders. That’s explained here:
Those claims are well-documented in the Seton Hall reports.
More proof that we locked up innocent people is here.
You said this: “the only example you have is KSM.” What could you mean by that, other than to suggest that we starved no one else? The idea that we starved no one but him is yet another fact that you’re attempting to manufacture.
What “question?” Was there a “question” buried somewhere in your gibberish? Where is it hidden?
The fact that almost no one other than me is bothering to respond to your transparent nonsense is proof that “every other reader understood this?” Really? You have an odd concept of proof.
You’re simply following your regular practice of ignoring all inconvenient facts. The OLC memos are not “speculation.” They document our starvation policy, in detail. And you have utterly failed to explain why severe and sustained restrictions in daily caloric intake should be described as something other than a starvation policy.
Where did I say they don’t bother me? It’s not a question of whether or not they bother me. It’s that discussion of those comments belongs in another thread (and those threads already exist), and I’m not going to be baited by your lame attempt at changing the subject.
When you say “emboldening,” do you mean comments like “bring them on?”
Who knows? Who cares? I cited a report from 2009. You responded by saying this: “try to cite post-2006 data this time.” One of many examples of you failing to make any sense whatsoever.
Why is there a need for an update? I showed proof to support my claim, that we tortured people to death. Why did you claim this NIH data was “manufactured?”
When are you going to present the slightest bit of evidence that the NIH data is “manufactured?” When are you going to show a single example of anyone seriously disputing that data?
More gibberish. The data I cited is “pre 200x?” Really? The 2009 Senate report on detainee abuse is “pre 200x?” I had no idea. I see that you’re using some kind of magic calendar, in addition to your magic dictionary.
March 11, 2010, 7:10 amjukeboxgrad says:
kevin:
Obviously you think there’s some natural law that makes it impossible to be both. Really? Choosing evil magically guarantees competence? On what planet? If it did, the world would have ended a long time ago.
The clowns who thought they could disassemble the Brooklyn Bridge with a torch were not both evil and incompetent? The crotch bomber was not both evil and incompetent?
I’m just trying to follow your logic here. Maybe you can show us where it’s hidden.
March 11, 2010, 7:12 amDavid M. Nieporent says:
Making you look foolish.
I’ll explain it using small words for the people riding the short bus: This. Information. Was. Already. Public.
In other words, any demand for transparency and openness was already satisfied.
March 11, 2010, 7:41 amMoneyrunner says:
The brilliant legal scholars who post here have totally convinced me that the lawyers who rushed to Gitmo to defend the
terrorists,Jihadists,illegal combatants, totally innocent bystanders, were taking on an unpopular cause. In effect risking their careers for truth, justice and the American way.But then that hag Ann Coulter chimes in with this:
As Dan Rather said “Courage!” Please, I don’t want to change my mind again. Tell me again how courageous these brave lawyers were. Atticus Finch would not be afraid of the “bitter clingers,” wouid he?
March 11, 2010, 7:49 amDavid M. Nieporent says:
Hmm. That very link you provide says:
I don’t know him, but “medical adviser to Physicians for Human Rights” doesn’t sound like a Bush partisan.
And, as you have repeatedly failed to acknowledge, that 23% was merely an unverified claim by KSM. (Indeed, not only have you failed to acknowledge that, but in the part I just quoted above, you adopted his claim as if it were true, by claiming that their policy “ensured” he would lose that much.)
Your Capone-Madoff analogy doesn’t get any more analogous because you repeat it. It doesn’t beg the question any less the second time around. If I send my daughter to bed without supper because she misbehaved, does that mean I am guilty of torture, just at a lesser level? Or is there a threshold, below which “starvation” is different in kind rather than just quantity?
March 11, 2010, 8:06 amjukeboxgrad says:
He’s commenting on the policy as written down by OLC, not as implemented by CIA. Comparing the 2002 OLC memos to the 2005 OLC memos demonstrates that the CIA was inclined to greatly exceed whatever ‘guidelines’ they narrated to OLC. And that OLC was inclined to not mind at all when they later found out they had been misled. The doctor you’re quoting was only making a comment about the words on the page; trouble is, it’s a bit credulous to assume that the words on the page are an accurate and complete reflection of the actual policy, especially when we take into account what ICRC said.
The ICRC report is here (pdf). It says this:
Aside from the interviews being consistent with each other, they are also generally consistent with the details reported in the OLC memos that were released in 2009, years after the interviews took place. So there are multiple reasons to treat the interviews as credible.
Most of the people they interviewed reported food deprivation similar to what KSM reported. He wasn’t the only one we starved.
You’re correct that abuse and torture are sometimes a matter of threshold. That’s the same point that was made by Susan Crawford, who Bush put in charge of detainee trials, and who reported that we committed torture.
Likewise, standing shackled and sleepless is not torture if the duration is short, but it is torture when the duration is 180 hours. Trouble is, that’s what we did. And the starvation policy was explicitly intended to enhance that torture.
March 11, 2010, 1:52 pmMichael B says:
“Get real. Cheney impugned the motives and character of all attorneys who represented the detainees.”
Indirectly, yes, and called them in to question and for purposes of public discussion, yes, that’s true. Still, the purpose was to question Eric Holder employing so many who fit this profile, which is precisely what was stated.
“And, BTW, from my perspective, it is also important to do pro bono work for clients whose cases are not high profile. There will always be a bunch of qualified attorneys willing to donate time to a high profile case. Not so for the case that is not so high profile. If there is criticism to level regarding choice of pro bono clients, it is that attorneys don’t spend enough time donating time on cases that are not high profile.”
High vs. low profile has nothing to do with it. This is a war and general conflict that has a pronounced sui generis aspect to it, given the absence of state actors with the concomitant presence of an ideology that nonetheless serves to unite the jihadists, salafists, etc. who variously determine to play a part in the conflict, against the U.S., against the west, against Israel, etc. Hence the subject matter brought up in my other comment in entirely germane within that framework.
March 11, 2010, 2:59 pmDavid M. Nieporent says:
Numerous prisoners alleged that their feeding was irregular in some way for some portion of time, whether it be KSM claiming a long term denial of solid food to others claiming a shorter time. Those allegations are relatively “consistent,” and so have some credibility. Plus, we know they’re true in general since we’ve seen memos discussing a policy of “dietary manipulation.” The specific claim that KSM lost 23% of his weight, however, is not corroborated by anyone; nobody else in the ICRC report discusses KSM’s weight loss, or for that matter their own weight loss. (IOW, KSM is the only person in the ICRC report who discusses the issue of weight loss.) There’s no reason a specific uncorroborated data point need be given significant weight (no pun intended) just because a general claim is believed.
March 11, 2010, 3:45 pmjukeboxgrad says:
The “uncorroborated data point” is highly congruent with lots of corroborated facts about the CIA torture program. Which makes it both not terribly important and also highly credible.
March 11, 2010, 4:10 pmSarcastro says:
Michael B: completely immune to subtext. If That’s what Cheney said, that’s what the ad was meant to do! Just like those ads that ask you to “call youy congressman and tell them puppy-kicking is not okay” are really just weighing in on anumal cruelty!
March 11, 2010, 5:46 pmjukeboxgrad says:
Are we talking about the same ad? This is “precisely what was stated:”
Tell us about the magic GOP dictionary where those words mean “precisely” the same thing as “question Eric Holder employing so many who fit this profile.” Then again, I realize your magic GOP dictionary also does some peculiar things with the word “precisely.”
March 11, 2010, 6:04 pmMichael B says:
precisely what (I) had stated, Einsteins
March 12, 2010, 3:28 pmArbalest says:
jukeboxgrad
Wrong again. And you are evading my question following the quotes at the beginning of my 11:14PM post.
Correct link, yet your quotation of me, as you constructed (constructed: to build or make something; possible synonym: manufactured) and posted it, is clearly inaccurate, as per the link you provide; it is not “the whole truth”, and it implies a different claim on my part. Why?
And in fact, here you admit you misquote me, and you admit that you know it. Clearly I meant what I wrote, in context. The whole context of the sentence, the paragraph it’s in and the related paragraphs.
Now it’s time to clean up your “starvation” meme. But don’t forget to read the end of this post.
As per my 11:14PM comment,
“you keep equating “dietary manipulation” (making a bad grown man go to bed without dinner ‘cause he won’t tell us about his friends who want to kill more of us) to “starvation” (something people [die] from).”
I’ve listed a couple of places (“Darfur”, “Somalia”, “North Korea”) where people die from starvation, where statistics, reports and PICTURES of these events are available, and occasionally broadcast on national tv, printed in major newspapers, etc. Do you claim to be unaware of events and conditions in either place, or to have never heard reports or seem pictures of starvation there?
We’ve (well, I’ve) seen, on national tv, in major newspapers, and various blogs, pictures of some of the Gitmo detainees. They do not look like they are starving or have been starved. A quick comparison of pictures with some examples form Somalia shows the difference.
It seems clear that “dietary manipulation” and “starvation” are very different, much more so than even “showering” and “waterboarding”. Your claim (at least implicit, because you’ve interchanged the terms several times) that “dietary manipulation” equals “starvation” is clearly wrong, and you know it.
“Dietary manipulation” is clearly very different from “starvation”, …
… in magnitude: (your links) Ensure, bread, other food, possibly nothing, vs. (news reports, other): grass, twigs, bark, field stubble, whatever the starving people can find and try to eat, maybe nothing, …
… and duration (your links): a day or two, maybe even a couple of weeks on Ensure, etc., (implicitly) until you toss your cookies about other plots to kill American civilians, vs. (news reports, other): months of trying to find something edible in a denuded landscape, with no “Palomino” or other code word to end the suffering.
Your moral equivalence between the two is clearly wrong and intellectually dishonest. But read on.
Your response to David M. Nieporent’s 3:45PM comment answers only a fraction of his post:
Your post:
Ahh, so the “uncorroborated data point”, i.e., 23% weight loss, is “highly credible”, i.e., “truthy”, perhaps “fake, but accurate”?
Are you seriously arguing that it’s ok to accept uncorroborated (although something post-2006 might corroborate) claims?
Crap. I thought we ended this sort of testimony sometime between 1696 and 1712. But read on.
The 23% weight loss claim is from KSM, a man who plotted the murder of ~2900 American civilians (and more, but we stopped him), and who has a motive to lie. Unlike KSM, I’ve never even considered such plotting. Nor, unlike KSM, have I murdered or killed anyone, or caused other to do so. So, yes, I’m better than KSM. Additionally, I have not spent my career, not even once, finding/manufacturing technicalities to get evidence against accused rapists, child-molesters, and the like, excluded. But I suppose KSM has not done this either.
No, wrong again. Context here: http://volokh.com/2010/03/09/more-on-liz-cheney/#comment-769974:
You evade the very next sentence of the same paragraph: “Just out of curiosity, and potentially for future use, can you cite a case where any US human rights activists have started litigation against this policy in, say, the 50 years between 1947 and 1997?”.
Clearly, as per my words, the scope properly is things in use for a century or two to which no Leftists-Stalinist-Maoists-Kim-Jong-Ill-ists-activist lawyers have objected. Read on.
So, to repeat this question, do you have any cases US human rights activists have started litigation against this policy in, say, the 50 years between 1947 and 1997? How about taking responsibility for the facts that (1) you evade this question and, again, (2) you’ve got nothing.
I felt certain that mentioning that Lincoln was a Republican would jar your memory about, among other things, a piece of legislation Eisenhower proposed, “Dixiecrats” (even into maybe‘65-66) . . . and maybe even bussing in the North. And now I gotta ask: are you then suggesting that the meaning of slavery 150 years ago does NOT have some relevance to the meaning of the same word today, and to make such a claim is, in your words, “silly”?
But you brought up the irrelevant topic and smear of slavery, and now I assume this particular irrelevant argument of yours is ended. Please read on.
It is a fact that:
“My career isn’t devoted to finding some reason, any technicality, etc., to get arrested and accused pimps, gang members, wife-beaters and the like back on the streets as fast as possible. Nor is it to find reasons to free enemy combatants captured on the battlefield, roughly 20% of whom have been found to have returned to the fight.”
And it is a fact that you misquote my post. Again.
.
.
And finally, the EPIC FAIL you’ve been waiting for:
From your 7:10AM post:
HAHAHAHA. You quote only the very last paragraph, 17 of 17, from a 2007 article.
Selections from your link:
The first sentence of paragraph 5:
“But some detainees would rather remain at Guantanamo than face possible torture or death at home and have begun to challenge their departures in U.S. courts. Rahman is the first detainee to succeed in that effort.”
The first sentence of paragraph 8:
“Another Guantanamo detainee, Abdul Ra’ouf Omar Mohammed Abu al-Qassim, publicly fought transfer to his home country of Libya in June, also fearing torture or death.”
.
.
Bottom line, courtesy your link:
.
The detainees at Gitmo know what constitutes torture, and even they don’t think that what’s happening at Gitmo is torture.
.
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THE Question: HOW could you miss the FIRST 16 PARAGRAPHS of a 17 PARAGRAPH article?
And now, back to the thread topic.
I think we’re done here.
March 12, 2010, 10:58 pmjukeboxgrad says:
arbalest:
If there’s a question buried in that pile of gibberish, I don’t know what’s preventing you from restating it clearly. Because I can’t make out what it is.
I asked you to support your claim that we haven’t starved anyone at Gitmo. This is your answer? Because you’ve seen “pictures of some of the Gitmo detainees” and “they do not look like they are starving or have been starved?” You’re joking, right? You can tell by looking at a photo of someone whether they’ve ever been starved? Even if the starvation was experienced years earlier? That’s an amazing achievement, rivaled only by Dr. Frist’s ability to diagnose Teri Schiavo via video. Where did you pick up this extraordinary skill?
And this is putting aside the fact that you have seen pictures of only a handful. You saw pictures of all the hundreds who have been there? Really?
Let’s recall one more time what you said: “we have not starved any.” This would have been a truthful statement: ‘I saw pictures of a few, and to the extent it’s possible to judge such things from a photo taken at a distance, the few I saw did not look like they were being starved at the time of the photo.’
But that doesn’t have quite the rhetorical impact of “we have not starved any,” does it?
Anyway, thanks for demonstrating so clearly that you don’t comprehend the difference between fact and speculation.
Naturally. If an enemy captured an American and deprived them of solid food for a month, you’d call that starvation. But when we do it to someone else (and that’s precisely what we did), you (and the Orwellians in the Bush administration) call that “dietary manipulation.” That’s the way in which they are “very different.”
I see you have a lot of trouble getting your facts straight. Our starvation policy meant no solid food. Which excludes “bread, other food.”
I see you have a lot of trouble getting your facts straight. Our starvation policy meant (in one or more cases) no solid food for a month. Not just “a couple of weeks.”
And it happens to be congruent with other evidence from a variety of sources. For some strange reason you are ignoring this fact.
I already addressed this question. For some strange reason you are ignoring this fact. Here’s an idea: deal with the answer provided, instead of simply repeating the question.
You are pointing out correctly that there are some torturers worse than our torturers. So what? Who cares? How did your standards get to be so low?
Where did I say that we tortured every detainee? Why would you assume that we give every detainee the exact same treatment?
And if one or more detainees think that the torture somewhere else is worse than the torture at Gitmo, how does that establish that “they don’t think that what’s happening at Gitmo is torture?”
Promises, promises. What’s “done” is your credibility.
March 13, 2010, 12:16 amArbalest says:
Ok, let’s talk about credibility:
You have none.
You are evading my question following the quotes at the beginning of my 11:14PM post. You pretend it isn’t there, though it is clearly posted for all to read. You fail.
.
You’ve already admitted, at the beginning of your 7:10AM post, that you know your quotation of me is incorrect. You fail again.
.
Yes, this is my answer. You know my answer is correct, because it’s true; the pictures are public, and none of the Gitmo detainees look like the starvation victims of Somalia or North Korea. You know that “dietary manipulation” is not even close to “starvation”, and your attempt at morally equating the two terms is intellectually dishonest, and by itself is enough to end what ever little credibility you had. You fail again.
.
.
Then there’s this, from your link (and the topic is clearly the CIA “diet manipulation”)
“Physicians for Human Rights?”. Tell me this organization and Allen are not GOP members.
And then later in the same article:
There are no challenges to this statement in the article (which you linked). In your March 11 1:52PM you post assumptions about what Allen meant, or whether the words on the page are an accurate and complete reflection of the actual policy (yet you provide no evidence), but you’re happy to accept consistent interviews as credible, i.e., “truthy”, “fake but accurate”. In short, you have nothing and your link caused your arguments to self-destruct. EPIC FAIL.
I gotta ask:
1. Do you even read the contents of your links? Tell me you’re not someone who’s been forced to accept a court-appointed lawncare service.
2. How many more of your links will explode in EPIC FAILS before the ABA requires that you be strapped to a chair and forced to watch 40 hours of “Matlock” reruns before ever participating in any legal action more complex than a parking ticket ever again?
.
These words and claims of yours are intellectually dishonest. See previous. Scott Allen, “a Rhode Island-based doctor and medical adviser to Physicians for Human Rights.” said so, and you provided the link.
.
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KSM’s 23% weight loss claim:
Ahhh, “congruent”: “truthy”, “fake but accurate”? As of this writing, you’ve still supplied no other sources, your 23% weight loss claim is uncorroborated, and it’s by a man with strong motivation to lie.
Meanwhile, your source says (paragraph 2 and article end) that losing more than 10 percent of his body weight would trigger termination of the diet, and provides nothing contradictory, other than KSM’s claim.
How many more of your links are going to self-destruct, and not say what you apparently think and claim they say? You’ve questioned my “Trust but Verify” comment, and asked for, well, proof: are the last few points and exposures of YOUR links sufficient clarification?
You fail again.
You evaded my question. Probably a good choice on you part, as your irrelevant slur subsequent comments have left you in a really bad spot, which I suspect you will wish no one else to read.
.
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Finally, your EPIC FAIL as demonstrated by my March 12, 10:58PM comment. Your link does not say what you think or want it to say. Re-read the entire article that you linked. The wording, as written, clearly associates the perception in the minds of the Gitmo detainees the condition or existence of “torture” with places other than Gitmo. Were, at the time, ANY Gitmo detainees trying to be transferred to the custody of any other governments? Apparently none, as per your link.
So, based on your evidence, the detainees did not view Gitmo as a place where they would be “tortured”. Therefore, the association of the term “torture” with Gitmo came from, or the association of the term with Gitmo was manufactured by, someone else, someone not a detainee at Gitmo at the time the article that you linked was written.
And, fortunately or unfortunately, evidence that all Al Q and Taliban, and likely members of various militias, terrorist organizations and others, have been instructed to claim, as a routing matter, that they’ve been tortured, has been made public.
So, who tells the truth; members of the American military, or enemy combatants, terrorists and their Leftist sympathizers? Given that when I traced many of your links, and they did not say what you said/claimed/implied/(whatever) they said, I find that I simply can’t trust any claim you make or link you post. I have to verify. Your credibility has just been flushed.
March 13, 2010, 9:36 pmjukeboxgrad says:
Hey arbalest, what happened to “I think we’re done here?” I was correct to predict that those words mean nothing, just like the rest of your words.
That post is here. What you are calling a “question” is this:
Preceding those words are about 200 words of gibberish. If you can translate your “question” into English, I’ll consider answering it.
That post is here, and it doesn’t contain what you say it contains.
And this is your proof that we starved no one at Gitmo? Excellent logic. I missed (among other things) the part where you demonstrated that you’ve examined photos of everyone who has passed through Gitmo.
Are you even vaguely familiar with the OLC memos of 2002 and 2005, and the CIA IG report? Because they are indeed “evidence” that the CIA described their guidelines, and then proceeded to violate their own guidelines. Which means that only a highly credulous person would assume that “the words on the page are an accurate and complete reflection of the actual policy.”
Except that “would” and ‘actually did’ are not the same thing. In 2002, CIA told OLC all sorts of things that they “would” do. Trouble is, they ended up going far beyond what they said they “would” do. As I said, you are highly credulous. But it’s adorable to know that you believe everything your government tells you to believe. A true conservative.
I can see that your reading comprehension needs a lot of work. What the article actually says is this:
I realize you’re using the magic GOP dictionary with treats “some” and ‘all’ as synonyms.
If “some” were trying to stay there that means that most weren’t. Is that really too hard for you to understand?
March 13, 2010, 11:15 pm