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Lawfare Warnings

1:39 PM, Mar 5, 2010 • By DANIEL HALPER
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With the arguments over detainees and their lawyers heating up, it's worth noting two past pieces by Keep America Safe's Debra Burlingame, both of which appeared in the Wall Street Journal.

In 2008, Burlingame wrote about Abdullah Saleh Al-Ajmi's lawyer, who taught the Islamist suicide bomber to love Miranda. The author warned of the consequences:

Unless Congress weighs in, judges -- unaccountable to the body politic -- will decide what standards of proof and rules of evidence will apply to these detainees, resulting in an ad hoc, case-by-case body of law which focuses on the rights of the detainees, not on the consequences for our war fighters who risk their lives to capture them. Since when do we leave it to judges to decide when and to what degree our troops are required to engage in police duties in the heat of battle?

Further, judges only rule on the applications made by the lawyers who come before them. Despite their rhetoric about "rule of law," attorneys are not charged with acting in furtherance of the national security interests of the public. Their obligation is to their clients alone, the detainees. Hence, we have witnessed the six-year campaign by Gitmo lawyers to pressure the U.S. government into releasing dangerous men before their cases come before a military tribunal or are heard in the federal courts.

David Cynamon, a senior attorney at Pillsbury Winthrop Putnam Shaw, is one of the lead lawyers negotiating the repatriation of the Kuwaiti detainees. In an email last fall to Pentagon officials, Mr. Cynamon expressed frustration with what he perceived as foot-dragging in the release of the last four Kuwaitis still held at Gitmo. He attached an exhibit which compared the unclassified information on all original 12 Kuwaiti detainees who were captured in Afghanistan. "I find it impossible to deduce from this chart," he wrote, "that the four who remain are any more (or less) [sic] dangerous than the ones who were returned." After Al-Ajmi's devastating suicide attack in Mosul, one hopes the Pentagon is giving his chart a second look.

Meanwhile, the habeas attorneys' effort to smear the United States and paint their clients as innocent victims continues. "Poems from Guantanamo" was taught this spring in an undergraduate course called "Writers in Exile" at City University of New York in Queens, a short distance from Ground Zero. The book's introduction states that the detainee poets "follow in the footsteps of prisoners who wrote in the Gulag, the Nazi concentration camps, and, closer to home, Japanese-American internment camps." One of the students, posting on the class blog, wrote of the detainees' plight, "Wow, I had no idea. For the first time in my life, I am ashamed to be seen as an American."

Your whole being and your heart will be captivated by this night, who drove the Romans to madness. You will forget everything about Rome and will live the life of faith in Islam.

Abdullah Salem Al-Ajmi, the detainee who wrote of turning the tables on his lawyer, Miranda, should haunt the dreams of every member of Congress.

And in 2007, Burlingame wrote

Although a few mistakes were made when some of the Guantanamo detainees were taken into custody in the fog of war, others were indisputably captured with AK-47s still smoking in their hands. Any one of those who have been properly classified in Combat Status Review Tribunals as an unlawful enemy combatant could be the next Mohamed Atta or Hani Hanjour, who, if captured in the summer of 2001, would have been described by these lawyers as a quiet engineering student from Hamburg and a nice Saudi kid who dreams of learning to fly.

How we deal with alien enemy combatants goes to the essence of the debate between those who see terrorism as a series of criminal acts that should be litigated in the justice system, one attack at a time, and those who see it as a global war where the "criminal paradigm" is no more effective against militant Islamists whose chief tactic is mass murder than indictments would have been in stopping Hitler's march across Europe. Michael Ratner and the lawyers in the Gitmo bar have expressly stated that the habeas corpus lawsuits are a tactic to prevent the U.S. military from doing its job. He has bragged that "The litigation is brutal . . . You can't run an interrogation . . . with attorneys." No, you can't. Lawyers can literally get us killed.

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