Lawyers, Terror & Torture

By DAVID COLE
March 11, 2010
Courtesy Of The Nation

In this profoundly dispiriting season of partisan guerrilla warfare, we have grown all too accustomed to unfounded and nakedly cynical attacks on the Obama administration from the Republican Party and its supporters. Still, matters reached a new low recently when Dick Cheney's daughter Liz and her Keep America Safe organization triggered a witch hunt by posting a video suggesting that lawyers now in the Justice Department who had previously represented Guantánamo detainees are unpatriotic and not to be trusted. The department did not help matters by at first declining to name the lawyers when asked their identities. It had nothing to hide. It should have identified and celebrated them, explaining (since it apparently needs repeating) that the American adversarial system depends on just such courageous conduct from lawyers willing to defend the least popular among us.

Liz Cheney's attack is scurrilous and has been condemned not only by the New York Times editorial page and former Solicitor General Walter Dellinger but by prominent conservatives such as Ken Starr and several Bush administration lawyers, including former Attorney General Michael Mukasey and former Deputy Attorney General Larry Thompson.

Even Charles Stimson, Bush's deputy assistant secretary of defense for detainee affairs, has joined the chorus of critics. Stimson should know. He earned his fifteen minutes of fame by suggesting in 2007 that corporate clients of law firms representing Guantánamo detainees should make the firms "choose between representing terrorists or representing reputable firms." Stimson had to resign as a result of his remarks. Having learned his lesson, he has signed a Brookings Institution letter condemning Cheney's attacks.

Others are undeterred. Former Bush speechwriter Marc Thiessen, author of a vacuous book defending torture who has been awarded a weekly platform by the Washington Post, used his column to decry those who criticized the attackers, asking, "Where was the moral outrage when fine lawyers like John Yoo, Jay Bybee, David Addington, Jim Haynes, Steve Bradbury and others came under vicious personal attack?"

Thiessen appears not to see the difference. Those who defended Guantánamo detainees sought to uphold the rule of law; indeed, several worked on the cases in which the Supreme Court rejected Bush's contention that Guantánamo was beyond the law. (Should the High Court justices' patriotism also be questioned?) The Bush lawyers Thiessen named, by contrast, all played a role in authorizing torture and cruel, inhuman and degrading treatment--war crimes. Thiessen is not a lawyer, but that doesn't excuse his inability to understand the basic distinction between defending someone locked up for years without charges and authorizing war crimes by manipulating the law to bless illegality. The former is an indispensable feature of our American tradition; the latter is morally and constitutionally indefensible.

Cheney's attack and Thiessen's defense are so baseless they can be understood only as partisan demagoguery, designed to take the focus off the real culprits--among them Liz Cheney's father and Thiessen's former colleague, Dick Cheney, who authorized waterboarding, sleep deprivation, slamming detainees into walls and forcing them into painful stress positions. These crimes resulted in little useful intelligence, gave a propaganda gift to Al Qaeda and erected a major stumbling block to holding terrorists accountable for their crimes.

The scandal is not that lawyers who defended the rule of law are now in the Justice Department but that lawyers in President Bush's Justice Department, with senior members of his cabinet, authorized war crimes and have thus far been given a free pass. The latest development is that the department will not refer Yoo and Bybee, who wrote two 2002 memos authorizing torture, to their state bars for disciplinary action. The Justice ethics office wrote a scathing report concluding that both men had violated their professional obligations to provide objective and independent advice. But David Margolis, a senior Justice official, vetoed the referral, saying that they merely used "poor judgment."

The question Americans need to ask is not whether a Justice Department lawyer in an earlier job defended the Constitution on behalf of an unpopular client. Rather, we should be asking why the government adopted a deliberate program of torture and cruel, inhuman and degrading treatment and has not held anyone accountable, apologized to the victims or acknowledged its wrongdoing. That is the real scandal.