There are two senators who’ve accused Justice Department attorneys who represented Guantanamo detainees of sympathizing with terrorists: Chuck Grassley (R-Iowa) and, perhaps more disturbingly, Jeff Sessions (R-Ala.), the ranking member of the Judiciary Committee who very nearly became a federal judge in the 1980s. Their logic is no different than presuming a lawyer who defends an accused rapist approves of rape.
“Do the senators suggest that the person be unrepresented?” wondered retired Navy Lt. Commander Charlie Swift, who helped defend Salim Hamdan alongside Neal Katyal, the deputy solicitor general whom Grassley and Sessions slimed. “Can they concede that a court in which they are unrepresented [fails to] meet that Common Article 3 standard?” Funny thing about that.
In 2006, Congress passed the Military Commissions Act. Among the provisions of the Military Commissions Act of 2006 — specifically, Section 948k — is that detainees under the commissions are entitled to defense counsel. You’ll never guess which two senators voted for the Military Commissions Act, with its nefarious promises of detainee counsel: Chuck Grassley and Jeff Sessions.
“If they didn’t think attorneys should do this, or that such people are traitors for doing it, why did they establish the requirement?” said Swift, now a lawyer in private practice in Seattle. “I don’t understand. To me, it’s political cheap shots. It’s not the law.”
Another funny thing: This particularly sleazy argument has all played out before. In 2007, Cully Stimson, then the top Pentagon official for detainees (now with the conservative Heritage Foundation), said in an interview that he was eager to see law firms pay a price for choosing to represent Guantanamo detainees. “When corporate C.E.O.’s see that those firms are representing the very terrorists who hit their bottom line back in 2001, those C.E.O.’s are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks,” Stimson said. “And we want to watch that play out.” The Washington Post’s editorial page replied that it was “offensive” for Stimson to argue “that law firms are doing anything other than upholding the highest ethical traditions of the bar by taking on the most unpopular of defendants.”
And you know who agreed with the Post? No less a law-breaking, impunity-loving executive-power-drunk official than soon-to-be-disgraced Attorney General Alberto Gonzales. “Good lawyers representing the detainees is the best way to ensure that justice is done in these cases,” Gonzales told The New York Times. Even Alberto Gonzales thinks that Guantanamo detainees deserve good legal counsel!
Perhaps it’s unsurprising that this episode has fallen down the right-wing memory hole now that a Democrat is in office. “This entire attack is representative of the extraordinary double standard to which members of the Obama administration are held, as opposed to members of the Bush administration,” Swift observed, adding for good measure about his friend Katyal: “Neal is the modern-day John Adams, in fact. … Neal came in out of the highest of principles. He took the case even though he knew he might be attacked later for doing it. He argued it from the highest of principles, he conducted himself at every moment as the most principled attorney I’ve ever seen. And he won the case.”