(updated below)
Hauling out a decades-old zombie canard that will probably never die -- namely, that a lawyer who advocates for the Constitutional rights of a Bad Person is acting improperly or even subversively -- Andrew Sullivan, in a post entitled "Defending an Active Terrorist," writes:
The decision of the ACLU and CCR (the Center for Constitutional Rights) to represent Anwar al-Awlaki, even as he continues to emit clear death threats to writers and cartoonists, seems to me to cross a line.
I'd really love to know: which "line" would this be? Even Bush-43-appointed federal judge John Bates -- who presided over the 3-hour hearing on the request by the ACLU and CCR for an injunction against Awlaki's assassination -- repeatedly acknowledged that the American-citizen-targeted assassination power Obama is asserting is extraordinary, and the DOJ's unrestrained executive power theory invoked to justify it is unprecedented. Does Andrew really believe that it's the duty of every Good, Patriotic American lawyer to refuse to participate in a judicial adjudication of these critical Constitutional questions? It's preferable to simply cede this power to the Government without any judicial review or ruling as to its propriety or Constitutionality -- just allow the Government the power to compile hit lists of American citizens far from any battlefield without even having to defend the Constitutionality of those actions in court? What conception of patriotism calls for that? Which "line" compels abstention from such proceedings?
How could it ever "cross a line" for a civil liberties lawyer to represent an American citizen in an American court arguing that the Government is transgressing the limits of the U.S. Constitution? The only thing that crosses a line is to insinuate that there's something improper about that. This has been the favorite right-wing smear for years against anyone -- including torture opponents -- arguing that the Government's "War on Terror" conduct is unconstitutional or otherwise illegal: you're being "pro-Terrorist" and crossing a line.
That's what is particularly strange about reading this argument from Sullivan of all people: he himself has repeatedly defended Terrorists by protesting the interrogation methods to which they are subjected. His anti-torture protests serve the interests not only of captive Terrorists, but of active, uncaptured ones as well, who -- if Sullivan has his way -- will be treated more humanely if they are apprehended. Using Sullivan's reasoning, he himself could be -- and often has been -- accused of being pro-Terrorist by virtue of his moral and legal objections to the treatment to which Terrorists are subjected, and by demanding limits on that treatment. What's the difference?
Does Sullivan believe that those who represented actual Terrorists in court by suing Bush officials for damages arising out of torture and rendition -- including some who are now free -- have also "crossed a line?" How about lawyers who defend child rapists, knowing that if they win, the defendant will be freed, perhaps raping and killing more children? Or lawyers who sued the Bush administration demanding that they not eavesdrop on Americans -- even "active Terrorists" -- without the FISA warrants required by law? Or the scores of lawyers who successfully represented actual Communists in the 1950s and 1960s -- including many who advocated violent overthow of the U.S. Government -- and who thereby established many of our most basic modern liberites? Have they all crossed this line, too?
To bolster his accusation, Sullivan cites an article detailing the objections of a single CCR board member to this lawsuit:
Karima Bennoune, a law professor at Rutgers school of law, Newark, New Jersey, has gone public with her misgivings at the CCR's decision, reflecting a debate within human rights groups on how to deal with Islamist fundamentalists.
"I support the important work the centre has done on torture and extraordinary rendition," said Bennoune, "but I expressed grave concern at CCR offering to represent Awlaki's interests pro bono. Anwar al-Awlaki is not a detainee; he is still at liberty and able to gravely harm others by inciting and advocating murder."
No matter how much people like Karima Bennoune wish it weren't true, it nonetheless is true that the Supreme Court has emphatically held in Brandenburg v. Ohio that the First Amendment bars the Government from punishing people even for explicit advocacy of violence except where it's designed and likely to result in "imminent" (i.e., basically immediate) violent acts. All reviewable evidence that has been publicly disclosed about Awlaki regards clearly protected speech. If there's evidence that goes beyond protected advocacy into criminal acts -- as there very well might be -- then it would be easy to indict him on those crimes. And when that happens, it's up to these institutions we call "courts," in adversarial proceedings we call "trials" -- complete with lawyers representing the accused -- to determine whether he is actually guilty: not the President acting alone without any checks or oversight while issuing unilateral, due-process-free death penalty decrees.
And if the President really does have that unreviewable assassination power under the Constitution -- based on some sort of Cheneyite War theory or anything else -- then that, too, is for courts to decide. Stigmatizing those who take part in that process and who seek judicial rulings on the Constitutionality of government acts is itself a direct assault on our basic system of government -- rather ironic for someone who purports to enforce lines of patriotism. That's how Constitutional rights are vindicated: by dedicated lawyers defending those whose rights are under assault (usually the most despised and marginalized among us: at least at first). Lawyers who defend our Constitutional rights pro bono (i.e., for free) by representing such individuals are acting with particular nobility and deserve extra gratitude, not scorn; that's how our core liberties are preserved.
Are we really back at the point where those lessons need to be recited? And worse, are we back at the point where those who defend the Constitutional rights of accused Terrorists -- thereby defending the Constitutional rights of everyone -- are going to be smeared as being pro-Terrorist or breaching some sort of ill-defined patriotism "line"?
UPDATE: One other question for Andrew Sullivan and anyone who agrees with him: In 1770, John Adams defended two British soldiers accused of murdering several Americans when they fired indiscriminately into a crowd of civilians, as part of the Boston Massacre. Adams called his decision to defend them "one of the most gallant, generous, manly, and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country." Was Adams right, or did he "cross the line"?
Also, when Liz Cheney and Bill Kristol launched their despicable campaign to brand various Obama DOJ lawyers as the "Al Qaeda 7" for having defended "Terrorists," Sullivan accused them of "gutter McCarthyism" and wrote: "The Cheney-Kristol faction reveals once again their contempt for core American values: they endorse torture and they demonize lawyers who represent unpopular clients." Indeed.
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