Judicial Crisis Network chief counsel Carrie Severino praises her organization's last-minute television attack advertisement against Michigan Supreme Court candidate Bridget McCormack for assisting in the representation of Guantanamo detainees. But Severino's article, which appeared in the National Review Online, failed to mention that the right to counsel for the detainees, such as the one McCormack represented, has been defended by prominent conservative lawyers and the federal courts.
The ad in question began running the week before the election and has been heavily criticized both locally and nationally for attacking McCormack's participation in the legal proceedings for accused detainees at Guantanamo. The 30-second ad features a mother whose son was killed while serving in the military in Afghanistan, who asks “how could” McCormack “help free a terrorist”? In fact, McCormack was part of a Bush-era legal system set up to represent Guantanamo detainees, many of whom were found to be improperly detained. In defense of the ad, Severino writes that the Judicial Crisis Network was “proud of the service we performed by exercising our constitutional rights and bringing these facts to the people of Michigan.” But this attack on the provision of attorneys for detainees - regardless of their guilt - is not new and has been repeatedly discredited by prominent conservatives.
For example, Severino recycles the argument that the detainees should not have access to counsel based on their status as "foreign enemy combatants." As conservative Professor of Law Orin Kerr has noted, this argument is "simply incorrect," as evidenced by the Bush administration's abandonment of such a claim and Supreme Court and subsequent rulings that established the constitutional right of detainees to "go to federal court to challenge their continued detention," a right not contingent on citizenship.
Kerr offered this analysis in the wake of similar attacks on Justice Department attorneys who - like McCormack - had provided representation for detainees prior to entering government service, describing the attacks as “ridiculous.” Also in response to this earlier incarnation of the current smear, a “group of prominent lawyers, many of them conservatives and former Bush administration officials, signed a letter denouncing the attack as a 'shameful' effort." From the 2010 letter, which included prominent conservative attorneys David Rivkin, Lee Casey, Kenneth Starr, and Viet Dinh, among others:
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.
The American tradition of zealous representation of unpopular clients is at least as old as John Adams's representation of the British soldiers charged in the Boston massacre.
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. Whether one believes in trial by military commission or in federal court, detainees will have access to counsel. Guantánamo detainees likewise have access to lawyers for purposes of habeas review, and the reach of that habeas corpus could eventually extend beyond this population. Good defense counsel is thus key to ensuring that military commissions, federal juries, and federal judges have access to the best arguments and most rigorous factual presentations before making crucial decisions that affect both national security and paramount liberty interests.
To delegitimize the role detainee counsel play is to demand adjudications and policymaking stripped of a full record. Whatever systems America develops to handle difficult detention questions will rely, at least some of the time, on an aggressive defense bar; those who take up that function do a service to the system.
The right to counsel has been repeatedly reaffirmed by the courts. Most recently, the respected Chief U.S. District Judge Royce Lamberth, who was nominated to the bench by President Ronald Reagan and is in charge of Guantanamo proceedings, reminded the government in September that the constitutional right to access to the courts for detainees “means nothing without access to counsel” because they “are inseparable concepts and must run together.” In fact, this fundamental constitutional concept is the exact point of the op-ed penned by McCormack in 2005 that the Judicial Crisis Network mischaracterized in their ad campaign against her as “an opinion piece in the Detroit News where she encouraged other attorneys to represent suspected terrorists.” From McCormack's June 16, 2005, Detroit News op-ed (via Nexis):
The success of the emerging democracy in Iraq, which hundreds of American men and women have lost their lives fighting for, will depend on whether the rule of law takes full root. Of course, our commitment to the rule of law here at home underlies our own system of government.
That commitment in turn requires unwavering respect for due process for the accused -- to be informed of charges, to have genuine access to legal counsel and to be given an opportunity to present or contest evidence. Our commitment to such basic rights extends to our most serious transgressors, and it is upheld during our most difficult times. Such a commitment most distinguishes us from our enemies.
The urge to cut constitutional corners when fighting an evil enemy is understandable. But it is a visceral urge, and we should resist it.
Abandoning the rule of law betrays our most fundamental commitments, our noble side. America has fought and won its most important battles without abandoning the values that most define it, including most especially due process and the rule of law.