The horror: conservatives throw Guantanamo defense work in faces of appointed lawyers

A shocking thing to do but I was curious whether this awful behavior had ever happened before so I searched the New York Times (which is tremendously incensed about all this) for  “judicial nominees’ clients”. Whoo boy! Turns out the shoe is just on the other foot.

There was Pat Kuhl’s nomination, back in 1983.

William Myers in 1985


There over a thousand articles at the linked-to search summary (some duplicates, surely) but most are protected behind the Time’s money wall which I dare not breach (or will not). I thus could not retrieve the Times 1971 editorial objection to Judge William Rhenquist’s nominatio but I did find via Google this testimony against the nomination by members of the NAACP before the Senate Judiciary Committee. Seems they objected to the man because, years before, he had volunteered [their emphasis]  to defend against the Equal Accommodations Act. Hmm – isn’t the objection to the Gitmo lawyers that they, too volunteered their services?

The Times concludes this morning:

If lawyers who take on controversial causes are demonized with impunity, it will be difficult for unpopular people to get legal representation — and constitutional rights that protect all Americans will be weakened. That is a high price to pay for scoring cheap political points.

I just can’t find any evidence that The Times exhibited this same concern when judicial nominees represented polluters or racists or anything else that fine paper labels a “conservative cause”. I happen to agree with the Times’ position – it happens – but a principled stand is one which you don’t shift depending on whether or not you approve of the actors’ behavior. The Times is no better and in fact is as bad as Lyn Liz Cheney and her ilk who are going after these lawyers.

UPDATE: Instalanche! Thanks, Glenn. ( I was wondering why I was getting so many comments from readers whose names I didn’t recognize)

UPDATE II: And now, Tigerhawk! Cool!


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19 Responses to The horror: conservatives throw Guantanamo defense work in faces of appointed lawyers

  1. Anonymous

    Liz Cheney.

  2. Matt Eckel

    I disagree that lawyers have no obligation to screen their clients. There will ALWAYS be lawyers who will take cases and the theory is not that everyone gets the widest possible choice of an attorney, but access to AN attorney, the Times’ scare notwithstanding. If you volunteer for something, own up to the choice that you made. You really need to understand the Times. They will argue anything to achieve their liberal objective, demonizing conservatives and lauding liberals. In other words, you don’t really “agree with the Times,” because they don’t actually hold the view that you are bending over backwards to “agree” with.

  3. I guess you missed the part of the article that says “and constitutional rights that protect all Americans will be weakened”. The lawyers in question today protected neither Americans, or constitutional rights. They protected enemies of America, and enemies of America have no recognized constitutional rights. So the argument that you forward doesn’t hold water in these circumstances, unless you are also willing to equate the Equal Accommodations Act with the 9-11 plot.

  4. Liz Cheney. And her ilk are true American heroes doing the work that other media, including you are not willing to do.

    Good for her.

  5. zipity

    The NY Times appears to be exhibiting shameless duplicity, jaw-dropping hypocrisy, and naked situational moral relativism. Everyone who’s surprised, please line up, close your eyes, and I’ll give you a big surprise….

  6. rob

    John Yoo loves that editorial.

  7. Gurgler


    Sorry, not sure where to post this, but this article from ESPN re; Obama’s Interagency Ocean Policy Task Force is another illustration of how out of touch our fearless leaders are.

    God help us if this is as bad as ESPN suggests. You’ll have to learn how to tie flies without hooks.

  8. Just Some Guy

    I second Matt Eckel’s comments. America should “have a conversation” (sorry) about the rights of the accused, the right to counsel, and lawyers’ ethics. I say:

    * The accused has a right to seek an attorney. That doesn’t grant his lawyer a pass for ignoring the accused’s guilt, if applicable.

    * A right to counsel should not imply society’s obligation to provide it. Sorry, SCOTUS.

    * Lawyers who don’t screen and who pretend they’re fulfilling some heroic duty by doing their utmost, in our fetid legal system, to gain advantage for guilty/evil clients are themselves sinning.

  9. viktor silo

    There is an issue here and, it seems, everyone has missed it. It is not the right of defendants to counsel and it is not that lawyers are being tarred for defending unsavory clients.

    The issue is: how did so many of the “Guantanamo” defendant’s lawyers end up at Justice? Mere co-incidence?

  10. Ben

    Diggs nails it. I would also add that Cheney, et. al. are not complaining that the terrorist lawyers were hired by DOJ at all, but that they were hired to work specifically on our anti-terrorism efforts. This isn’t just unseemly — It is downright unconscionable.

  11. BD57

    Of course the Times is practicing hypocrisy – that is what ideological opportunists do.

    As to the subject matter:

    * While attorneys have an ethical obligation to provide pro bono services, they don’t have an obligation to represent EVERY person who cannot afford or otherwise obtain counsel.

    * An attorney has an ethical obligation to decline representation if his/her personal feelings about the client and/or the case negatively impact the representation. IMO, it’s fair to conclude that none of the attorneys felt obliged to decline representation of the Gitmo detainees on this ground.

    * To some extent, the Obama Administration is responsible for any conclusions being “jumped to” – from the start, Holder’s Justice Department has resisted every effort to identify these people. At a minimum, that suggests the Administration may well have put people who have zealously opposed the United States’ detention policies in positions where they control / influence that policy going forward. Congress (and the rest of us, for that matter) have a right to know what these folks are doing – and to raise questions if, indeed, the “foxes” lawyers are now in positions where they can influence “henhouse” policy.

    * IMO, the Administration’s stonewalling (and all the griping since the names became known) has nothing whatsoever to do with the attorneys and everything to do with protecting the Administration. The Administration wanted these people in the Justice Department and it is responsible for the assignments they have – it’s fair to say the Administration is not troubled at all about their past representation of Gitmo detainees.

    Now, if they were put in the correct positions – for instance, away from national security matters (an attorney’s talents are not wholly defined by the work done for any one particular client) – that could be fine. Given the Administration’s actions, though, it’s pretty easy to understand why Congress (and the rest of us) might question whether that is the case.

    The Administration stonewalled the inquiry because it doesn’t want 1) to defend hiring them / the assignments they have; and/or 2) anyone objecting / “interfering” (via oversight, protest, whatever) with its preferred policy.

    In short – the Administration objects to oversight by anyone (surprise surprise).

  12. Pingback: Amazing: NYT Only Upset When Conservatives Question Lawyers’ Backgrounds « Lachlan Markay

  13. janet

    While lawyers are certainly entitled to do volunteer work if they wish, there is nothing to say that they don’t deserve contempt for choosing to volunteer for terrorists. They have a weird ethical code where they think they deserve some kind of admiration for this.

  14. Henry

    Thank you, Chris, but you overlook an important distinction that aggravates the Times’ hypocrisy.

    Judicial nominees leave the realm of advocacy to serve as arbiters. They act openly and must recuse themselves whenever they are called upon to adjudicate a controversy involving a former client.

    Appointees to the position of public prosecutor, on the other hand, leave one set of clients for another. Frequently, they leave the realm of private advocacy to accept the responsibility of working for the public good. But their ethical obligations remain the same, whether their prior work in the private realm was free or paid.

    In such cases, as in that of the “al-Qaeda Seven,” these lawyers breach the most fundamental canon of legal ethics (that of undivided loyalty to their client) if they now act as prosecutors (or in any way influence prosecutors under their supervision) in cases involving the interests of their former clients. It does not matter whether they betray their former clients’ confidences on behalf of the public, or if they subvert the public’s interest on behalf of their former clients. Either would constitute not merely a breach of ethics of the lowest sort, but behavior of manifestly abhorrent and even criminal dishonesty.

    More importantly, the mere appearance of such impropriety is a breach of ethics that endangers the finality of any criminal convictions obtained during or after the tenure of such lawyers.

    If a prosecutor knowingly hires lawyers with such ethical disabilities, and either aids and abets their misconduct by concealing it from the public, or merely perpetuates mistrust of the criminal justice system by failing to identify these lawyers and publicly demonstrate that these lawyers have been “screened” from any contact with such cases throughout their tenure, that prosecutor’s misconduct is far worse than that of any of the lawyers that he hired.

    And if the prosecutor’s boss is also a lawyer, he should recognize this ethical issue and take appropriate action, or answer for his inaction with his own license to practice law.

  15. Fat Man

    Point missed folks. A lawyer who represents a client cannot drop the client and go to work for the person who was suing his client in the same or a connected lawsuit.. That is a conflict of interest and a breach of professional ethics.

  16. This post has been linked for the HOT5 Daily 3/10/2010, at The Unreligious Right

  17. I agree that these lawyers should not be demonized, but 7 from the same terrorist-defense pool is a bit much and shows total disregard for the security of our great country.

    • christopherfountain

      Well yes – 7 terrorist volunteers all ending up with Justice Department jobs sets off alarms.

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