9:58 AM, Mar 9, 2010 • By WILLIAM KRISTOL
I'm not a lawyer (though a few of my best friends are). But I gather there's an old legal dictum that goes: If you can't argue the facts, argue the law. If you can't argue the law, argue the facts. If you can't argue the law or the facts, blow smoke.
If you want to see some really high-class smoke being blown, it's worth taking a look at the recent statement signed by a bunch of Republican lawyers defending liberal lawyers now working at the Justice Department who'd previously represented or advocated for terrorist detainees. Nameless straw men (including me) and women (Liz Cheney) are subject to name-calling--"shameful," "unjust," and "destructive" appear in the first paragraph alone. In all three paragraphs of the lawyers' letter, highfalutin generalities are generally and highfalutinly invoked. The self-esteem and self-importance of lawyers are much in evidence. The only thing missing is an actual argument.
Here's the first paragraph: "The past several days have seen a shameful series of attacks on attorneys in the Department of Justice who, in previous legal practice, either represented Guantanamo detainees or advocated for changes to detention policy. As attorneys, former officials, and policy specialists who have worked on detention issues, we consider these attacks both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications."
Okay, it's an introductory paragraph, so one doesn't expect much in the way of facts. But the introduction might have noted what fact precipitated the angry statements from Republican senators and the now-famous Internet ad from Keep America Safe, on whose board I sit and which Liz Cheney chairs. That fact was the refusal of Eric Holder's Justice Department to identify the lawyers he's employed who had done work on behalf of terrorist detainees, and to say whether they were working on detainee and war on terror issues at the Department. In fact, these names came out shortly after the ad was released, and the Justice Department grudgingly confirmed them--though still refusing to specify what the attorneys were working on.
But one wouldn't know from the lawyers' letter that the question of Justice Department transparency was even at issue. Do the lawyers believe Holder was right to resist releasing this information? They don't say. Yet this was the main practical issue at stake.
"The American tradition of zealous representation of unpopular clients is at least as old as John Adams's representation of the British soldiers charged in the Boston massacre. People come to serve in the Justice Department with a diverse array of prior private clients; that is one of the department's strengths. The War on Terror raised any number of novel legal questions, which collectively created a significant role in judicial, executive and legislative forums alike for honorable advocacy on behalf of detainees. In several key cases, detainee advocates prevailed before the Supreme Court. To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit."