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Mind-blown

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 lawyersabetting 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 suggestiveless 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 Statess 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.Lets 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 Hoods 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 lawyers 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 Americas public image. They lament that the force-feeding was portrayed as torture by human-rights activiststhough 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 theyve 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 criteriaand 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 doesnt seem to mind: at the National Reviews The Corner, the article is being called mind-blowing. By a commentator named McCarthy, no less.

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To their credit, card-carrying conservative lawyers like Kenneth Starr and Theodore Olson have criticized the vitriol being leveled at DOJ lawyers (by Liz Cheney and others on the far right of the RP) who at one time provided defense counsel assistance for Guantanamo detainees. I read somewhere recently that about two-thids of the 50 largest law firms in the U.S.--who primarily represent corporate and other monied interests--have provided legal assistance to detainees, either in the form of direct defense assistance or in the filing of amicus briefs in cases in which the detainees are involved. This WSJ op-ed primarily takes aim at the lawyers in the big firms, I assume in an effort to dissuade such representation and to give notice to the firms' current and potential clients that their favorite white shoe law firms may be doing something disloyal and unamerican. I agree that the op-ed is pretty thin on convincing facts. That's not to say that there may not be individual abuses of court orders on dissemination of attorney-client materials, but the courts overseeing the detainee cases are well-equipped to police individual infractions.

Dotcommonweal jumps the shark. The editorial pages of the WSJ are the radical right? Uh-huh.

Good point. Perhaps they should clarify it to say the literate radical right.

Thanks for your comments, especially to William. I probably should have pointed this out in the original post, but the radical nature of the movement to put the Guantanamo lawyers on trial along with their clients is set in relief by the fact that this movement is being widely condemned on the right, even in the midst of our almost unremittingly partisan political climate. If my critique of B&J's argument didn't convince Eggloff and this doesn't either, I don't know what to say. Unagidon is correct: it would be hard to find another website advocating B&J's position using complete sentences rather than bombastic captions pasted over stock photos of middle-Eastern men. I also think William is correct to point out that B&J do at least as much work toward the possibility of an unofficial private-sector blacklisting of the firms and lawyers they mention by the private sector as they do toward their explicit goal of a public appraisal of the lawyers' fitness to serve the public.