The Republican Governors Association has launched an ad campaign in support of the reelection of Gov. Nikki Haley that should be of concern to all lawyers. The campaign attacks State Senator Vincent Sheheen because he represented people accused of crimes.
This is reminiscent of the similarly shameful attacks made by politicians and others in the public eye against lawyers who represented detainees at Guantanamo or death row inmates. As you probably remember, just recently the recommendation to appoint Debo
Adegbile’s to head the Civil Rights Division of the Department of Justice was derailed because
he had represented a death row inmate when
he was a lawyer at the NAACP Legal Defense Fund. Likewise, a few years ago, Liz Cheney and others conducted a vigorous campaign against the hiring of lawyers who had represented Guantanamo detainees.
To its credit, the
South Carolina Bar Association has stepped forward to denounce the recent campaign ad. South Carolina Bar President Alice Paylor has been quoted as saying that “What they’re
attacking is the whole basis for the U.S. and the U.S. Constitution.
According to them, I guess everyone accused of something is
automatically guilty.” The ABA Journal.com has more on the story here.
Professor Jonathan Turley has commented that the trend to attack political candidates for the fact that they represented criminal defendants is a "truly vile and McCarthyist trend that seeks to punish professional working within our criminal justice system." (Interestingly, the New York Times also used a reference to McCarthyism in 2010 when discussing the attacks on Guantanamo detainee lawyers. See here).
I agree; and for that reason I am going to copy below part of my comments from 2010 when the debate over the Guantanamo detainees was going on. You can click on the dates to read the original comments and see more links.
March 7, 2010
By now I am sure you have heard the controversy and debate generated by a video that criticizes the Obama administration for hiring lawyers for the Department of Justice who had represented Guantanamo detainees in the past. The video, released by a group called Keep America Safe (whose board members include Elizabeth Cheney), questions the lawyers’ loyalty to the United States, calling the Department of Justice "Department of Jihad" and asking “Whose values do they share?"
In a way, we should not be surprised by this kind of attack since the previous administration spent a lot of efforts critizing, attacking and trying to control or punish attorneys who worked to help Guantanamo detainees. A lot of attention was given back then to comments challenging the “loyalty” of attorneys who volunteered for such work. There is a lot of literature out there you can find to get more information about that, including a short article by Jesselyn Radack called “A Blacklist’s Real Face” published in The National Law Journal on February 19, 2007 in which the author describes her own experience of retaliation after she exposed unethical conduct by lawyers in the DoJ for which she was branded a traitor and supporter of terrorism. Sounds familiar?
Now, Liz Chaney and her friends are back at it again calling the lawyers who formerly represented detainees “The Al Qaeda Seven.”
The attack on the administration and on the lawyers themselves is ... based on just plain ignorance of what it means to be a lawyer and to believe in and defend the rule of law and the Constitution. I am happy to see that it has been strongly denounced by so many so quickly, including by lawyers prominent in the previous administration.
In Liz Cheney’s world, detainees would not have any rights. She has decided they do not deserve to be afforded due process. We should create sham judicial proceedings or "kangaroo courts" that would deny due process rights in the name of expediency. In her world, we should deny rights to terrorism suspects, at least in part, because terrorists do not respect the rights of others.
But, here is the thing, that is what makes them terrorists. Liz Cheney would want us to do the same. She wants us to be more like them. It is her who is expressing anti-American values!
As I said in a previous post, I greatly admire attorneys who make a commitment to represent truly unpopular clients. It takes courage, determination and conviction and represents the best of our profession.
I commend the administration for recognizing the value of commitment to doing the right thing, to defending the rights of the accused, to defending the constitution and that which makes our legal system fair and valid.....
[The original post has the video of the ad that started the whole controversy.]
March 8, 2010
A group of well-known conservative lawyers have signed on to a letter chiding Liz Cheney as well. The letter states, in part:
"The past several days have seen a shameful series of attacks on attorneys in the Department of Justice who, in previous legal practice, either represented Guantánamo detainees or advocated for changes to detention policy. As attorneys, former officials, and policy specialists who have worked on detention issues, we consider these attacks both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications. . . . . To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit. Such attacks also undermine the Justice system more broadly. In terrorism detentions and trials alike, defense lawyers are playing, and will continue to play, a key role. " . . . .
March 10, 2010
Stephen Colbert interviews a Guantanamo detainee defense lawyer.
Prof Andrew Perlman (Suffolk Univ Law School) has posted a short, but very good comment on the issue (available here),
in which he argues a similar position to the one I tried to argue in my
original post on this whole affair. His argument is as follows: "We
should explicitly acknowledge and embrace the idea that lawyers who
represent unpopular clients are endorsing a particular set of values.
Those values happen to include (among others) safeguarding foundational
procedural protections, the need for quality representation in an
adversarial system, and ensuring that the government pursues its
important work within the bounds of the law. Lawyers who endorse those
values should be praised, not criticized. In fact, those lawyers are
ideally suited to work in a government department that is supposed to be
committed to the cause of justice. Liz Cheney, therefore, is right
about one thing: the work of the "al-Qaeda 7" lawyers does reflect their
value judgments. By criticizing those lawyers, however, Liz Cheney is
really criticizing the values that those lawyers embraced. And by
criticizing those values, which are so foundational to America's system
of justice, Liz Cheney (ironically) is the one who appears to be
endorsing anti-American ideals."
Meanwhile, more and more
articles, posts and op-ed pieces are getting published on this same
issue. Here is a list of some of the ones I have seen today. Because
there are so many coming out every day, rather than posting anew every
time I come accross a new article I will just add it to this list, so
keep checking this post if you want the latest.... [Go here for all those links.]
March 17, 2010
Two former Guantánamo detainee lawyers have published an article
commenting on Liz Cheney's campaign against the Dept of Justice for
employing other former detainee lawyers. The article is available here. In the article, the authors state, in part:
. . . should know better. She is a law school graduate and former
practicing attorney. Her video contradicts more than 200 years of legal
tradition, whereby American attorneys have served as counsel for
unpopular clients, often without fee, in order to ensure that our
country remains a place where there is "justice for all" — even those
deemed our enemies. . . . .
. . . She asks: "Whose values do they share?"
is hard to imagine a more reckless charge. Well, on second thought, we
can think of one. Her video is reminiscent of similar tactics used
during one of the darker episodes in American history, when Sen. Joseph
McCarthy charged that those who insisted on due process for anyone he
accused must be a Communist sympathizer or a closet enemy of the U.S. . .
. .We believe history will judge Cheney's behavior as the equivalent of
Our constitutional system of government requires
that we afford due process to defendants even in times of genuine threat
to our nation and attacks on our people. The courts depend on the
willingness of lawyers to represent those accused of crimes, although
their clients may be feared or hated. . . .
The lawyers at the
Department of Justice who appeared on behalf of Guantanamo prisoners
deserve our admiration and respect, as our country tries to resolve the
difficult issues of how we will dispense justice to those considered to
be our enemies. They certainly do not deserve to be called "al-Qaida
lawyers," be labeled disloyal and unpatriotic or be disqualified from
And to that, I say, "well said!"