Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
For those with a penchant for ironic coincidence, it is interesting to note that the latest outbreak of McCarthysim -- the right wing witch hunt for attorneys who dare to represent those accused of terrorism -- was started by Andrew McCarthy. As far as I know, he is no relation to Tailgunner Joe. And you really have to see some of his appalling claims on the subject in this idiotic screed. McCarthy writes:
The lawyers chose to offer themselves, gratis, to our enemies for litigation the Constitution does not require. They did so knowing that this litigation would be harmful to the war effort -- a fact the Supreme Court emphasized when it denied war prisoners the right to file habeas claims in 1950.
Isn't that interesting? He goes back to 1950, ignoring the fact that the Supreme Court has ruled much more recently that the detainees at Guantanamo Bay do, in fact, have an inalienable right to habeas corpus challenges to their detention (and to the fact that a full 75% of those who've been granted such hearings have been found innocent of wrongdoing).
Perhaps the most unworthy deception is the comparison of those who volunteer to represent Guantánamo detainees to John Adams's representation of British soldiers involved in the Boston Massacre. The United States was not at war at that time, the British soldiers Adams agreed to represent were not non-uniformed terrorists, and those soldiers were defendants in a criminal trial. The proud American legal tradition involves defending the unpopular who are accused of crimes but presumed innocent.It has nothing to do with assisting the enemy in lawsuits against the American people during wartime.
Right. Because distinguishing between those detainees who actually are enemies from those who are wrongly accused of being enemies doesn't matter at all to McCarthy. If the Bush administration said they were terrorists, they're terrorists. What more do you need? Well, those who give a damn about human rights need much more than that. Simpleminded authoritarians like McCarthy don't.
Orin Kerr rips McCarthy at the Volokh Conspiracy for these vile arguments:
I find McCarthy's arguments ridiculous, and I want to explain why.Consider McCarthy's basic argument that lawyers who represented detainees "aided the enemy in wartime," and should normally be guilty of treason. If that's true, isn't the federal judiciary, and aren't the Justices of the Supreme Court, also guilty of treason? In fact, aren't the judges the kingpins of this treasonous plot to "hurt the war effort"? After all, lawyers only make arguments to judges. It doesn't actually help detainees to make argument courts reject. It's up to the judges to rule one way or the other. If the lawyers are aiding the enemy, they're only minor players: It's the judges, and especially the Justices, who are the real guilty parties, as they're the ones that actually help the detainees by ruling in their favor. Does McCarthy think the Justices of the Supreme Court are guilty of aiding the enemy, and that (if we treat them like everybody else) they should be "indicted for coming to the enemy's aid during wartime"? ...
I find McCarthy's dismissal of the Boston Massacre comparison very weak. McCarthy is right that the United States was not formally at war with Britain at that time. Of course, there was no United States yet: the trial of the Boston Massacre occurred in 1770, six years before the Declaration of Independence. But more broadly, my understanding is that there was no right to counsel as we know it today in the Boston courts in the pre-Revolutionary period. At common law, defense lawyers were forbidden: When a right to counsel was recognized, as it was generally recognized in the colonies, it was a right to have a lawyer represent you if you happened to be lucky enough to find one willing to represent you. At the time, many criminal defendants had no counsel at all. This matters because it puts John Adams in a pretty different light, I think. When Adams agreed to represent the English soldiers, he was not fulfilling some sort of obligation: No one had to represent the Englishmen. Adams acted -- and was criticized then, but celebrated now, for it -- because he agreed to represent the soldiers out of a personal conviction that no person should face a trial without counsel.
Finally, McCarthy strangely overlooks the basic fact that much of the litigation for the Guantanamo detainees concerns whether they are in fact the enemy. McCarthy presupposes that we all know that all the folks at Gitmo are terrorists, and the only issue is whether we feel like helping them knowing that it hurts America. But like the soldiers at the Boston Massacre, and like other criminal defendants, the Guantanamo detainees are "the accused."
He strangely overlooks this fact because he simply doesn't care. He rejects the most basic principles of the 4th, 5th, 6th and 7th amendments -- all while wrapping himself ni the flag and declaring himself the most patriotic of all men. The whole display is simply grotesque.
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Unless I'm very much mistaken, there's been no formal declaration of war covering the present conflicts, either.
Posted by: DaveL | March 18, 2010 9:44 AM
It's not just grotesque. It's unamerican. Truly unamerican. What happened to justice for all?
Posted by: Nils Ross | March 18, 2010 9:47 AM
We really need the national news media to step up and start pointing out that these right-wingers are not patriots, but are waging an all-out assault on this country's highest principles.
Instead we get CNN hiring someone who called a Supreme Court justice a "goat-f***ing child molester."
We're doomed, folks. We're losing the battle and the America we dreamed of is dead. Even our "left-wing" presidents don't give a whit about due process We're sliding inexorably toward an authoritarian state, that will be proclaimed by the right-wing as being the triumph of "freedom."
Posted by: James Hanley | March 18, 2010 9:52 AM
James, I'd also like to point out that we have a "left-wing" president who studied constitutional law. I don't see much hope of any less authoritarian presidential candidates than Obama in 2008. He's been a disappointment, but what really frustrates me is the realization that he's probably as good as we're going to get for quite some time.
Posted by: penn | March 18, 2010 10:04 AM
penn-
I think the fact that Obama studied constitutional law and yet has still been an unmitigated disaster on constitutional issues as president makes him even more culpable for it than his predecessor, who could not have picked the constitution out of a police lineup.
Next week I'll be giving a speech about Obama and the constitution here in Michigan and it is not going to be pretty. He hasn't just been a disappointment, he's been an active and dangerous enemy of the constitution to this point.
Posted by: Ed Brayton | March 18, 2010 10:12 AM
While this was in the confederacy, not the US, I am reading "Stealing the General" about the Andrews raid during the civil war, and those men, caught and some hung as spies, were allowed consel during the court-martials - though the lawyers they got did get some grief from the community.
Posted by: KeithB | March 18, 2010 10:22 AM
"The lawyers chose to offer themselves, gratis, to our enemies for litigation the Constitution does not require. "
Except, you know, the Supreme Court said the Constitution does require it. And who decides what the Constitution requires? The Supreme Court.
Posted by: Ginger Yellow | March 18, 2010 10:31 AM
James Hanley: We really need the national news media to step up and start pointing out that these right-wingers are not patriots, but are waging an all-out assault on this country's highest principles.
Minor problem: whether they are our country's highest principles depends on what poset ordering you use.
Major problem: many conservatives cannot agree to an objective IS assessment as to what are the country's principles, let alone an assessment as to what the principles OUGHT to be.
Posted by: abb3w | March 18, 2010 10:32 AM
Ed stated @ 5:
I wholeheartedly agree, primarily because the President has both the capability and the bully pulpit to promote a position that is rarely covered adequately. That's also amplified by the fact that many constitutional experts favor their ideology over the Constitution in a manner that makes them incapable of even making coherent constitutional arguments; the President proves he is not one of them. With President Bush we had an ignoramus laying waste to the Constitution if it was a barrier to mere policy objectives; his ignorance led to a lack of respect and devotion in spite of his oath. With President Obama we have a man who could enlighten the country on the Constitution and has in some areas; yet he also continues some of the Bush policies while remaining mute on those clear infringements.
This aspect of President Obama's presidency is my only major disappointment relative to my expectations of him on election day. The fact he's met or even exceeded my expectations in all other areas while proving he's a brilliant constitutional advocate when he chooses* to be makes this failure additionally difficult to swallow. Especially since the media doesn't even attempt to call him or his Press Secretary out on it.
I found his speech in Cairo and his campaign speech on race & religion to be two of the greatest speeches I've ever encountered by someone who achieved the office of the Presidency. Only someone who is both historically and constitutionally literate coupled to someone who also appreciates the underlying principles could have given those speeches. Given his demonstrated ability to meet this standard; why isn't the media holding to him it when he clearly fails in other areas like the State Secrets Privilege?
I hope I don't sound like a broken record on this topic, but I haven't been able to stop shaking my head on the President and the media's failure regarding this topic.
Posted by: Michael Heath | March 18, 2010 10:41 AM
So are the Guantanamo detainees prisoners of war, or are they not? Since when have we been able to declare war against a non-state entity? Are we to throw away all the legal system and a constitution because we are at 'war' with a vague undefinable enemy, a war with no clear definition of victory or defeat. There will always be terrorism, because it is an act. Any one can do it at any time. Saying that we have to throw away jurisprudence, because we are at war with 'terrorism', is like saying we must suspend the freedom of the speech because we are in a 'war of words'.
Posted by: holytape | March 18, 2010 11:19 AM
Ed, Where's the speech? Is it open to the public?
Posted by: James Hanley | March 18, 2010 11:46 AM
We'll never get agreement on our highest principles because we have different notions of highest principles, but I appreciate the sentiment. I would settle for a media willing to expose blatant falsehoods.
How about we campaign for an Ed Brayton commentary slot on CNN? Restore fairness and balance.
Posted by: Dr X | March 18, 2010 12:58 PM
I really wish people would stop referring to Obama as "left-wing" and/or "liberal." By whose definition is he either? From what I can see, the only people who think Obama is liberal are those so far on the right that Eisenhower is a "commie." Is this Orwell's future? Do we now let opponents redefine the words? Liberal has become a bad word, leftist has now come to mean someone slightly right of center. Socialist = Communist = moderate.
This is nuts, yet we continually let the inmates run the nut-house and make up the rules (even when they aren't in charge).
Posted by: dogmeatib | March 18, 2010 1:14 PM
Dr. X:
I'm all for it, preferably right after this schmuck has appeared. All they need to also include is the modern day equivalent of a laugh track while Ed fisks' his ass.
Posted by: Michael Heath | March 18, 2010 1:20 PM
dogmeatib,
I think that's why penn put "left-wing" in scare quotes. Obama's as left as we're likely to get, but, like Clinton, only those who aren't paying attention think he's a left-winger. I believe Clinton also taught Constitutional Law, and he also had precious little respect for due process, particularly in the "war" on drugs.
Posted by: James Hanley | March 18, 2010 2:59 PM
James Hanley @3: "We're losing the battle and the America we dreamed of is dead. Even our "left-wing" presidents don't give a whit about due process We're sliding inexorably toward an authoritarian state"
Seeing as the presidency is by definition the most authoritarian part of the government, this is not surprising. If we're losing the battle, maybe we need to rethink what battle we're choosing to fight, and refocus our efforts where we can win. (I don't mean change what causes we care about; I mean only change our methods of achieving them.)
I unfortunately cast a pragmatic vote for Obama for president. He's convinced me to never do so again. The fact that a third-party candidate cannot win is at least as much of an argument in favor of third-party voting as it is an argument against it. Nothing good will come from the presidential level anyway, so our votes for president should be about nothing more than expressing disgust for the existing system ("vote your disgust, not your fears"). I would suggest write-in votes along the lines of "Lizard People," except that voting third-party may have the additional advantage of tricking politicians who mistakenly believe that the third-party candidates are "stealing" votes from them into endorsing reforms such as IRV or a similar system.
Posted by: Miko | March 18, 2010 3:01 PM
As the old saying goes, Rome was not built in a day. I believe I will give Obama a little more time before declaring him a disappointment. It took several years and a destroyed constitution to get all those chaps locked up.
Posted by: old | March 19, 2010 4:04 AM
Zing!
Check out the second comment here for my petty yet accurate call.
Enough with the hyperbole people. Yes America is in a crazy state. Yes, we've had enormously bad luck with the whole "following the constitution" thing. Personally, I don't think this country has ever been all that strictly constitutional. Obviously there are some abuses that shouldn't happen, but until you see a large amount of citizens being denied due process, we still have plenty of time to try and reverse the process. I've had the fortune to spend some time in China: I will never take my rights for granted again. Just because Obama has been a major let down in this respect is no reason to decide to be totally ineffective. Miko, I'm looking at you.
Posted by: Tamarron | March 19, 2010 4:20 AM
Eris in a jar, sorry about that lack of bold ending tag.
Posted by: Tamarron | March 19, 2010 5:07 AM
I dunno Tamarron. It's pretty effective that way.
Posted by: Enigma32 | March 21, 2010 10:47 AM