The Wall Street Journal’s opinion page is often the place where the opinions of the radical right assume the guise of cool rationality and realism. Unsurprisingly, the WSJ is now lending its pages to the effort to cast doubt on the allegiances and judgment of Justice Department lawyers who previously represented Guantanamo detainees in private practice. Last Monday, the paper ran an op-ed, by Debra Burlingame and Thomas Joscelyn, the first two thirds of which provide a loose history of Guantanamo lawyers’abetting the efforts of their “terrorist” clients not only to defend themselves before military tribunals but also to continue their jihadist agenda from within the walls of Camp X-Ray. The anecdotes are obviously meant to raise eyebrows, but they are, at worst, merely suggestive—less a history of systematic subversion of American interests in the war on terror than a litany of vague allegations resting on the presumption that military “justice” entitles detainees at Guantanamo to few of the rights civil justice guarantees.
The only coherent narrative in the piece centers on two incidents involving lawyers from the firm Paul, Weiss, Rifkind, Wharton & Garrison. In the shocking opening scene, guards at Guantanamo discover that Paul, Weiss lawyers have distributed among inmates an Amnesty International pamphlet that denounces torture as a tool both immoral and counterproductive in the war on terror. Burlingame and Joscelyn dismiss the pamphlet as anti-American propaganda designed to inflame the passions of extremists. But if one peruses the pamphlet itself, one finds that their decontextualized summary is a bit misleading. They write:
The cover read: “Cruel. Inhuman. Degrades Us All: Stop Torture and Ill-Treatment in the ‘War on Terror.’” It was published by Amnesty International in the United Kingdom and portrayed America and its allies as waging a campaign of torture against Muslims around the globe.
Is it true that, to parts of the Arab world, the United States’s prosecution of the war on terror might look like “a campaign of torture against Muslims around the globe,” and that this appearance could jeopardize our success in combating violent extremism? Never mind. Burlingame and Joscelyn reject the notion that the documented history and widespread accusations of torture at the hands of United States military and intelligence agents at Guantanamo, Abu Ghraib and various other black sites could have any “[relation] to the representation of the detainee.” Instead, they take at face value the characterization of a Major-General Hood, then-commander of Joint Task Force Guantanamo, who objects to the pamphlet for two reasons: first, that it is filled with false assertions about American abuse of Muslim individuals; second, that it provides “moral support” to the enemy. It is the latter that is supposed to make the pamphlet such a dangerous breach of security.
Let’s leave aside the question of whether alleged patterns of abuse by Americans prosecuting the war on terror might be germane to individual detainees being tried in courts of law. This “moral support” sounds a false note. Are we to suppose that the military tribunals themselves are a crucial front in the war for Muslim hearts and minds? No, that is clearly not the kind of moral support we are talking about. The rest of the world already knew about the abuse, so why was it so important that the detainees be kept in the dark? Major-General Hood’s “Islamic cultural adviser” explained that the “highly inflammatory” tone of the magazine might provoke a “negative reaction” among the “hard-core terrorist factions within the camp.” Or as Burlingame and Joscelyn s put it, the Paul, Weiss lawyers were “inciting captured enemy detainees and endangering the safety and security of military personnel.” It takes a special kind of mendacity to appear so earnestly worried that people you already presume to be religious zealots sworn to kill Americans or die trying will hate America a bit more for having seen some literature from human-rights organizations.
The second incident described concerns a hunger strike by detainees at Guantanamo, in response to which they were force-fed. One Paul, Weiss lawyer is singled out as having “inflamed tensions with the hunger-strikers…[telling] one of the detainees, Yousef Al Shehri, that the government had no court authority to [force-] feed him.” Once again Burlingame and Joscelyn fail to ask whether there might be a good reason for the lawyer’s actions or any merit to her claims. Instead, they focus exclusively on the practical obstacles her actions posed to a quick conviction. Once again, we find the vague suggestion that the Guantanamo lawyers’ good-faith attempts to provide their clients with the effective counsel to which they are legally entitled could incite an outbreak of serious violence within Camp X-Ray. Here the authors also invoke a concern for America’s public image. They lament that the force-feeding was portrayed as torture by human-rights activists—though this had nothing to do with the lawyers’ advice. In short: The Guantanamo lawyers should not have done what they did, regardless of whether it was their job to do it.
In the last third of the article, Burlingame and Joscelyn pretend they’ve demonstrated the existence of some dangerous rot among a group of people now employed by the Department of Justice and lamely call for sunlight:
The attorney general has the right to select whomever he chooses to work in his department, and to set policy as he sees fit. He does not, however, have the right to do it in the dark. The policies he advances must face the scrutiny of the American people, his No. 1 client.
Eric Holder has the right to select competent individuals to work in his department, and the public has a right to know about his criteria—and even to question his judgment if there is evidence the department is failing in its mission to ensure that American safety is preserved through law and order as well as military force. The authors of this article provide no such evidence. Its intended readership doesn’t seem to mind: at the National Review’s “The Corner,” the article is being called “mind-blowing.” By a commentator named McCarthy, no less.