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Lawyers in Love (with themselves)

2:15 PM, Mar 9, 2010 • By JOHN MCCORMACK
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In response to Bill Kristol's latest post, lawyer Dan Gentges of Milwaukee writes an email with the subject line "Lawyers in Love (with themselves)":

With apologies to Jackson Brown for the subject heading, I wanted to respond to your Blog post earlier today.  Two things are at work in the wailing and gnashing of teeth by respected members of my profession regarding the Justice Department's hiring of former Guantanamo detainee defense counsel.

One is the typical overweening self-regard of lawyers generally and high profile litigators in particular.  It just comes with the territory -- especially when one can get on his/her soap box and assert our fundamental freedoms under the Constitution.  It makes for great theater, but in most cases it amounts to not much more than smoke, mirrors and ginned up outrage.  Usually, the greater the outrage, the farther the lawyer is from being on the side of the angels.

The second item I noted from your post was the following quote [from the lawyers' letter]:

"Such attacks also undermine the Justice system more broadly. In terrorism detentions and trials alike, defense lawyers are playing, and will continue to play, a key role. Whether one believes in trial by military commission or in federal court, detainees will have access to counsel. Guantanamo detainees likewise have access to lawyers for purposes of habeas review, and the reach of that habeas corpus could eventually extend beyond this population. Good defense counsel is thus key to ensuring that military commissions, federal juries, and federal judges have access to the best arguments and most rigorous factual presentations before making crucial decisions that affect both national security and paramount liberty interests. To delegitimize the role detainee counsel play is to demand adjudications and policymaking stripped of a full record. Whatever systems America develops to handle difficult detention questions will rely, at least some of the time, on an aggressive defense bar; those who take up that function do a service to the system."

That tells the discerning reader all he needs to know. These people are re-arguing the point made by yourself, Ms. Cheney and others -- namely, that we are at war.  The protections of the Constitution extend to citizens of the United States.  No one seriously disputes that claim. The grayer area is the level of protection afforded by the Constitution to enemy combatants.  The Justice system so highly esteemed by the authors of that quote exists for the protection of those who accept the supremacy of that system in the first place, and the ideals that underpin that system.  Those with whom we are presently at war reject that very justice system as a symbol of corrupt American and western culture.  And they seek to destroy that system.

If you do not believe we are at war with Islamic extremists and their enablers, then the quote above fits nicely with your mindset.  On the other hand, if you believe we are at war, the quote above displays not just moral vanity but a shocking disregard for the dangers we all face from those who are openly and actively engaged in a war against the United States and her people -- indeed a war with western civilization.

I have read critiques of the Nuremburg trials to the effect that while they resulted in justice for the perpetrators of one of the greatest crimes in human history, the result was nonetheless a victors' justice.  The argument is that by not adhering to principles of international law as we think of them today, the Nuremburg trials are somehow tainted. It is an intellectual argument that bears no relation to reality.  Much like the quote above.

Dan (just a dirt lawyer from Wisconsin . . . )

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