Witch hunts and fishing expeditions were supposed to go out of fashion when young America passed a Constitution and incorporated a Bill of Rights. But that hasn’t stopped our more morally endowed elected (and self-appointed) leaders from pursuing them – for power, political retribution, or to win elections, all under the guise of making this country safe and "free," blessed by God, and of course, indivisible.
Well, that last part doesn’t seem terribly important anymore. In fact, these things only work when we are divided. But let’s move on.
The latest Real American to take up this higher mission is Elizabeth Cheney, the self-possessed terror gumshoe and daughter of the man who says we don’t torture enough, bomb enough, or humiliate enough "bad guys" to meet the high tough-guy standards of this free and democratic nation. Liz ‘n’ Dick make a great team: their views and even affectations are virtually interchangeable. A doppelganger is quite useful on the demagogue circuit, especially when one’s heart (yes, he has one) needs a rest from God’s work from time to time.
"Terrorists belong in Guantanamo, not in the American heartland!" Liz called out to a blissful audience at last month’s Conservative Political Action Conference (CPAC), which just ate it up when she suggested CIA interrogators accused of torture deserve "thanks and our praise," not a government investigation. After all, they "are patriots." One wonders how fast this crowd would’ve rushed to justify it if she had called right then for the detention of the president himself.
"I guess it’s not so surprising that a Cheney loves torture, but I don’t recall Liz Cheney being quite so explicit about her enthusiasm for torturing people," wrote the Washington Independent’s Spencer Ackerman in the wake of her speech.
Sadly, her recent transformation from unremarkable State Department political appointee to emboldened jihad hunter and curiously aggressive television pundit, has that cynical whiff of someone trying to position herself for political office. "It’s time for us to stand up and take this country back!" she declared, echoing, almost flatly, the same sentiments from eager pols Marco Rubio and Rep. Jim DeMint earlier that morning.
So it should be no surprise that Liz’s latest target is not so far from the White House after all: last week she was demanding that Attorney General Eric Holder disclose the names of the lawyers in his department who might have worked on a case, been in a firm that’s worked on a case, or even crossed a "t" on an amicus brief on behalf of a case defending detainees held at Guantanamo Bay during the Bush administration. To accomplish this latest twist on the not-so-lost art of witch-hunting, her new Orwellian-sounding outfit, Keep America Safe, has joined the chorus of media swamp cats like Michelle Malkin and Byron York, all who smell a traitor and are reflexively ready to pounce.
"The lawyers who worked with the terrorist detainees chose to represent people who are making war on the United States," York wrote from his perch at the Washington Examiner. Under the headline "Corruptocrat AG Eric Holder Still Covering Up," Malkin insisted she was way ahead of Cheney Inc., having exposed "Eric Holder’s conflicts of interest as former partner at Gitmo detainee law firm Covington and Burling a year ago."
"The GOP needs to go to the mat on this issue — and the public can help. Bombard the DOJ," she demanded. "Show us the money. Cough up the information. Stop the cover-up. Name the names. The public has a right to know."
Then the public should also know that these lawyers put career and reputation on the line to defend not the actions of these seemingly indefensible characters (though it turns out that half the men held at Gitmo when Obama took office won’t face any charges after all), but to push the military and the federal government to make the system more reflective of American rule of law.
Their arguments were backed by the U.S. Supreme Court in key cases regarding the legality of the system and resulted in changes to the way detainees are processed and tried. Today the Military Commissions Act is still largely untested (many of the military’s own say it’s broken) and still evolving. It would seem these legal minds have as much right to help the DOJ navigate this unprecedented thicket of wartime detention policies (with which our international reputation rests, not to mention the lives of our own soldiers overseas) as any former prosecutor, whom you might say has his own potential conflicts to check at the door.
"Those who worked on detainee cases were working as part of a fully functioning civilized country that respects the rule of law," said journalist Andy Worthington, author of The Guantanamo Files, in a recent exchange with Antiwar.com.
Not as far as Cheney and others, such as Sen. Chuck Grassley, who began brewing this tempest in the teapot last month with this letter, are concerned. To them, the lawyers in question were the "Gitmo 9," and then a few days later, the "Al-Qaeda 7" (Investors’ Business Daily actually suggested the "Department of Jihad“), invoking – surely not coincidentally – all those bumbling wannabe terror cells from the Bronx and Buffalo and the like.
And here’s the real Cheney treatment – a 48-second campaign-style advertisement juxtaposing smiling silhouettes that are supposed to be DOJ lawyers with Osama bin Laden. In case that hammer didn’t hurt enough, we get the ghoulish voiceover: "Who are these government officials? Eric Holder will only name two. Why the secrecy behind the other seven? Whose values do they share? Tell Eric Holder Americans have a right to know the identity of the Al-Qaeda 7."
This was even too much for the usually reliable right-wing Allah Pundit at Malkin’s old Web site, HotAir.com: "I’d prefer to apply pressure to the feds without kinda sorta hinting that they’re in cahoots with Bin Laden," he said in a post March 2.
You’re getting soft, Allah Pundit, and that goes for you, too, Paul Mirengoff at Powerline.com. Your audiences have thrived and multiplied on the red meat, and they still crave it – like it or not.
But wait: according to Politico.com on Monday, a letter signed by 19 conservative attorneys and policy experts, including former independent counsel Kenneth Starr and a handful of senior officials from the Bush Justice Department, called the attacks "both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications."
Perhaps as a licensed attorney (albeit with very limited experience, if any, in litigation), Cheney will take pause. She had not yet responded to the letter publicly as of Monday. Clearly on the defense, she did tell the Washington Times on Thursday that the advertisement "doesn’t question anybody’s loyalty." Right.
Meanwhile, Worthington was even more withering in his critique, calling Cheney et al. "opportunistic leeches, playing the fear card," and "deluded people that America can do without." I’m sure he doesn’t think the United Kingdom, Worthington’s home base, should have any room for them either.
But the leeching apparently paid off – what it cured remains a mystery.
Fishing Expedition Nets DOJ Fish (Guppies?)
On March 3, a day after Keep America Safe (of which the esteemed Bill Kristol is on the board) launched its "advertisement," Fox News got a DOJ spokesman to confirm the names of the seven attorneys "in question." But where was the wanton venality, the liberal zealotry? Fox all but admitted the results were less than dramatic:
"An extensive review of court documents and media reports by Fox News suggests many of the seven lawyers in question played only minor or short-lived roles in advocating for detainees. However, it’s unclear what roles, if any, they have played in detainee-related matters since joining the Justice Department."
The author goes on to describe former Wilmer-Hale attorneys Jonathan Cederbaum and Eric Columbus, who now work in the DOJ’s Office of Legal Council (OLC) and the Office of the Deputy Attorney General, respectively, as having "minor" roles in a "firm-wide effort" to pursue the habeas rights of six Bosnian-Algerian detainees at Guantanamo Bay.
Turns out most of the lawyers in question weren’t defending the detainees, per se, but their right to challenge their detentions in court – a right the U.S. Supreme Court upheld in 2008.
One exception is Karl Thompson, also now working at the OLC, "who while working for the firm O’Melveny & Myers became one of the seven attorneys to represent Omar Khadr," a Canadian citizen whom the government still hasn’t convicted, even though he was captured at the age of 15 (seven years ago!) for allegedly throwing a grenade that killed a U.S. soldier. But apparently Thompson only worked on the team for seven months.
Then there’s Joseph Guerra, now a principal deputy associate AG, who as one of five lawyers from Sidley Austin helped to file a brief on behalf of several civil liberties groups asking that "homegrown terrorist" José Padilla be tried in a civilian court. He’s now doing 17 years on criminal conspiracy charges.
The biggest haul from this fishing expedition seems to be Tony West, a former attorney with Morrison & Foerster, who once represented "American Taliban" John Walker Lindh, who is sitting in a federal pen on a 20-year sentence for running with the Taliban when the U.S. invaded Afghanistan in 2001. West is now the assistant AG for the Justice Department’s Civil Division, which, according to the division’s Web site, handles "critical and highly visible litigation on behalf of the Departments of State, Treasury, and Defense," including cases involving international terrorism.
Meanwhile, the jihad-hunters already knew about Principal Deputy Solicitor General Neal Katyal, a former Georgetown University professor and Clinton administration official who had joined military JAG lawyer Charles Swift in bringing down the military commissions Bush first set up after 9/11. The Supreme Court nearly four years ago decided that those commissions were illegal.
"I am very concerned about the manner in which these attacks have escalated," charged Ken Gude, director of the International Rights and Responsibility program at the Center for American Progress, in an e-mail exchange. "It has even spread to the disgraceful level of guilt by association for lawyers who worked at firms who provided pro bono legal advice." By that standard, he pointed out that Rudy Giuliani should be on the "the list." Litigator Carol Bruce Elder, a "senior" partner in his firm, Bracewell Giuliani, is listed as counsel in two detainee habeas cases.
And you might as well throw a target onto former Bush Solicitor General Ted Olson, too. He also thinks the Constitution is worth defending, even when it’s politically awkward. Responding to similar attacks on lawyers in 2007, Olson said:
“The ethos of the bar is built on the idea that lawyers will represent both the popular and the unpopular, so that everyone has access to justice…. When government officials are called ‘war criminals’ and when public-interest lawyers are called ‘terrorist huggers,’ it not only cheapens the discourse, it scrambles the dialogue. The best solutions to these difficult problems will emerge only when the best advocates, backed by weighty resources, bring their talents to bear. And the heavy work of creating solutions for these complicated issues can only move forward when the name-calling ceases.”
Cheney expertly glosses over these inconvenient points when she’s preaching to the choir, when she says things like the guys in Gitmo "are such bad guys that most of their home countries don’t want them back." How bad are they? Why, they’re "the worst of the worst."
That’s all the rabble needs to hear, but it’s not true. As for Holder’s reticence to release the names – a position that has only made the hunt more furious – my only guess is he is fully aware how these things go, that the mob won’t stop until every single member of his department is put to the loyalty test, and even then it’ll sniff around the administration for more, like a McCarthy goon squad at a Hollywood Canteen.
And all for what, so that Liz Cheney can build a future campaign platform and raise gobs of money for her new 501(c)(4)? It just may work – an effective smear campaign can do magic. Just look at the crumpled heap of John Kerry’s presidential aspirations. But Cheney should be careful what she wishes for. Fishing expeditions tend to turn up the strangest things, in that we all end up on the wrong end of a hook, eventually.