The “al-Qaeda 7” aren’t like John Adams
Defenders of the habeas lawyers representing al-Qaeda terrorists have invoked the iconic name of John Adams to justify their actions, claiming these lawyers are only doing the same thing Adams did when he defended British soldiers accused in the Boston Massacre. The analogy is clever, but wholly inaccurate.
For starters, Adams was a British subject at the time he took up their representation. The Declaration of Independence had not yet been signed, and there was no United States of America. The British soldiers were Adams’ fellow countrymen — not foreign enemies of the state at war with his country.
Second, the British soldiers were accused of a crime. The constitution was not yet in place, but as I pointed out in my column this week, former federal prosecutor Andy McCarthy explains that the great American tradition later enshrined in the Sixth Amendment "guarantees the accused — that means somebody who has been indicted or otherwise charged with a crime — a right to counsel. But that right only exists if you are accused, which means you are someone the government has brought into the civilian criminal justice system and lodged charges against." Unless they have been charged before military commissions or civilian courts, the al-Qaeda terrorists held at Guantanamo do not have a right to counsel under the Sixth Amendment. They are not accused criminals. They are enemy combatants held in a war authorized by Congress.
In the 234 years since Adams and his compatriots fought for our independence, the United States has held millions of enemy combatants — and not one had ever filed a successful habeas corpus petition until the habeas campaign on behalf of Guantanamo detainees began. Thanks to this campaign, Guantanamo detainees now enjoy unprecedented rights far beyond those afforded to lawful prisoners of war with full Geneva protections. Nothing in the Geneva Conventions provides POWs with the right to counsel, access to the courts to challenge their detention, or the opportunity to be released prior to the end of hostilities. Yet thanks to the habeas campaign, al-Qaeda terrorists who violate the laws of war now enjoy all these privileges.
The habeas lawyers are not doing what John Adams did — representing accused criminals already in the judicial system. Rather, they have reached outside the judicial system and dragged the terrorists in. And with these actions they have done immense damage to our national security. Detainees freed from Guantanamo under pressure from the habeas campaign have gone back to the fight and killed American and allied forces. And according to Paul Rester, the director of the Joint Intelligence Group at Guantanamo Bay, their actions have decimated his ability to effectively question captured terrorists who remain for intelligence to protect the American people. Interrogators must be able to expose intelligence to terrorists during questioning. But with the growing presence of habeas lawyers, interrogators are constrained from doing so for fear this intelligence will get out. Captured al-Qaeda training manuals instruct terrorist to "take advantage of visits to communicate with brothers outside prison and exchange information that may be helpful to their work outside the prison" — and a number of law firms have been sanctioned for helping terrorists in Guantanamo pass messages. To expose intelligence to terrorists under such circumstances would put the lives of American troops at risk. "I might as well put an intelligence computer in a cave in Waziristan," Rester says.
And then there is the ACLU’s so-called "John Adams Project." In 2009 it was revealed that the lawyers in this project had stalked individuals they believed were CIA interrogators, surreptitiously took their pictures, and showed them to al-Qaeda terrorists at Guantanamo Bay — placing the identities – and, therefore, the lives — of these covert operatives and their families at risk. Would John Adams be proud to have his name associated with such conduct?
Pro bono hours are a scarce commodity, and how lawyers choose to spend that time tells us a lot about them. When they devote their time to representing the indigent, the elderly, battered women or refugees, we do not hesitate to say that those choices tell us something about their values. The same is true if they choose to devote their time to freeing America’s terrorist enemies from lawful confinement under the laws of war. At least that is what the founder of the organization that is coordinating the habeas campaign on behalf of captured terrorists — the Center for Constitutional Rights — has said. The late William Kunstler was once asked by Andy McCarthy why he never represented clients on the right with whose views he disagreed. Kunstler replied: "They have a right to an attorney, but they don’t have a right to ME."
Kunstler chose his clients based on his values. And so do the lawyers working with his organization to represent al-Qaeda terrorists. There is nothing wrong with raising questions about the virtue of those choices.
