Controversy Over "Al Qaeda Seven" Shows Disrespect for Lawyers and Rule of Law

Have you heard about the Al Qaeda Seven? An ad put out by a group called Keeping America Safe implores the public to "Tell Eric Holder that the American public has the right to know the identity of the Al Qaeda Seven." From the name, you might think that this is some dangerous terrorist cell threatening our national security. However, they are something much more sinister--lawyers.

The so-called "Al Qaeda Seven" are seven lawyers who once represented Guantanamo Bay detainees and now work at the Justice Department. They are a subset of the Gitmo Nine. Why are these lawyers so sinister? They represented detainees at Guantanamo Bay prior to going to work for the government. When Sen. Charles Grassley learned that two former detainee lawyers were now working for the government, he demanded to know how many other of these suspicious characters were lurking around the halls of the Department of Justice. Attorney General Eric Holder acknowledged that there were seven more, but refused to divulge their identity at first. This prompted Keeping America Safe (a group associated with Dick Cheney's daughter) to run their Al Qaeda Seven ad. Now the names of these lawyers have been made public in response to pressure from Fox News.

So, what is the big deal? Keeping America Safe equates advocating legal rights for accused terrorists with being a terrorist sympathiser. Look at the name they were given: Al Qaeda Seven. Were any of these lawyers members of Al Qaeda? Of course not. Were their clients members of Al Qaeda? Maybe. We don't know because in most cases, the government has not been required to prove its cases.

However, even if the lawyers represented hard core Al Qaeda sympathisers, does that make them dangerous? Liz Cheney thinks so. She is afraid that they will infiltrate the Justice Department and cause it to examine terrorism suspects as criminals rather than really bad dudes who don't deserve any rights.

Let's have a little perspective here. The War on Terror is breaking new legal ground. In the past, we could justify different rules for enemy combatants on the basis that they fought for another country and that once the war ended, they could be repatriated to their own country or tried for war crimes. However, what do you do with an enemy that is not a nation state and a war that has no end? This gives rise to some serious legal issues, as shown by the fact that cases involving terrorism detainees have been up to the Supreme Court five or six times (I have lost count).

For a lawyer, the chance to litigate serious constitutional issues in an undeveloped area is a major challenge. This is important stuff. In order to get it right, there have to be good lawyers on both sides. That means that someone has to represent the people we don't like, the bad guys, the accused terrorists, not because they like terrorism, but because they passionately believe that America is a country bound to the rule of law rather than men.

Consider this example. An occupying army fires into a crowd of civilians. The soldiers are prosecuted for murder. A local lawyer dares to defend the soldiers despite the unpopularity of the cause. He later enters government service. However, he considered his defense of the soldiers who fired upon civilians "one of the best pieces of service I have ever rendered my country." The lawyer was John Adams. He defended the Redcoats who participated in the Boston Massacre. He went on to become president of the United States.

As with so many examples these days, the ad about the Al Qaeda Seven is about manipulating the appearance of things without regard to their substance. It turns out that the Bush administration also hired lawyers who had represented detainees. Rudy Guiliani's firm Bracewell Giuliani represented detainees. Many of the fiercest advocates for the detainees have been military officers from the Judge Advocate General Corps.

Lawyers are not an extension of their clients. In the ordinary, humdrum world of litigation, lawyers may seem like mouthpieces for their clients. However, when serious principles are at stake, when we are trying to find our way through uncharted ground, lawyers represent their clients, but also represent the rule of law, one of the principles that defines this country. Now that the Al Qaeda Seven have been outed, I hope that Americans will respect them as lawyers worthy to represent their country and its dearest principles, not as fifth columnists seeking to undermine the nation.

For a really good discussion of this issue which pre-dated the latest nonsense, read "We Want Tough Arguments" by Theodore Olsen and Neal Katyal. Theodore Olsen was Solicitor General under George W. Bush and argued the government's position before the Supreme Court. He has a personal stake in the issue because his wife died in the 9/11 attacks. Neal Katyal is one of the Al Qaeda Seven and argued for a detainee before the Supreme Court.