Aiding and Abetting the Enemy

And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake! – Sir Thomas More, A Man For All Seasons

There has been no shortage of writing about the video that Liz Cheney’s Keep America Safe group produced that criticizes Department of Justice lawyers for representing the “Al Qaeda 7″. I’m not convinced that I’m qualified to offer anything more of value on the specifics that have come out surrounding the not subtle charges of impropriety, failure of loyalty towards country in time of war, all the way to jihadist sympathies, so I won’t be trying. But the whole affair speaks to some of the deeper concerns with which I’ve been wrestling of late.

Not surprisingly, everyone’s favourite NRO zealot Andy McCarthy has added his two cents to the discussion, which has kicked up a brand new cloud of dust into which various parties have charged, blades drawn,

Here is the legal profession’s message for the American people: “We’re just more important than you are.” Members of any other profession or institution would be indicted for coming to the enemy’s aid during wartime. Lawyers not only demand immunity from the ordinary duties of citizenship, but they insist that you admire them, or, at the very least, regard them as above criticism for volunteering their services to those trying to kill Americans.

Orin Kerr at The Volokh Conspiracy seems to have penned the gold standard in response to McCarthy noting,

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.”

At True/Slant, Conor Friedersdorf dug out the real life case that makes Kerr’s final point,

Thus Mr. al-Rabiah. It isn’t just that he was an innocent man thrown into Gitmo, or that he was held even after a CIA analyst concluded that he was innocent, or that National Security Council Staffers were aware of his innocence and actively trying to bring about a review of his detention — Mr. al-Rabiah’s case is apt because after the CIA’s 2002 determination of his innocence, he spent another seven years wrongly imprisoned, regaining his freedom and seeing his children only after retaining the help of American attorneys.

Finally, Kevin Drum notes both Kerr and Friedersdorf’s objections to the Cheney/McCarthy line of reasoning and adds,

The Andy McCarthys of the world endlessly lecture us about how this war is different because it’s fought on one side by non-uniformed terrorists. And there’s some truth to that. It is different. But one of the ways it’s different is that it’s not always simple to know who’s a real enemy combatant and who’s not. And if that decision is left entirely up to the executive branch, you’re practically begging for the same kinds of abuses that you get if you let the executive branch operate without oversight in any other area. Thus, lawyers and judges have a role to play. They aren’t aiding the enemy during wartime, they’re trying to figure out who the enemy really is. Even Andy McCarthy ought to be interested in that.

I agree that Kerr’s point about utilizing the judiciary system to determine who, precisely, constitutes an enemy combatant and who does not is a vital point. But an equally vital point, at least to my mind, is summed by another portion of Kerr’s retaliation wherein he revisits the John Adams analogy that has been floating about (emphasis mine),

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.

This is, I think, a point that hasn’t gotten enough attention and strikes, at least by my lights, to the much more central core of what is so disturbing about McCarthy and Cheney’s line of thought.

Drum is right to agree with McCarthy et al that there is something different about this “war”. There is, indeed, a fundamental difference between the participating parties. And it is more than just a matter of being uniformed or non-uniformed.

Even placing aside the ability to determine who really is an enemy combatant and who is not, once we’ve made that determination there continues to be a difference. That remaining difference is, or at least should be, the willingness displayed by each side to comport itself in a particular fashion.

What ought ultimately to bring American and allied forces down on the side of the angles is their willingness to treat the enemy with a modicum of fairness not necessarily reciprocated. Being prepared to offer the enemy legal counsel in a court of law to determine what they’ve done and how they ought to be dealt with as a result is something about which Americans ought to be proud. It speaks to, in some regard, the very foundation of the country. That people from Liz Cheney to Andy McCarthy, Bill Kristol to Mark Theissen, Dick Cheney to George W. Bush have spent the past eight plus years pointing out that the enemy isn’t willing to offer Americans such luxuries and so neither can Americans afford to be soft in this regard doesn’t actually offer the exoneration they all seek.

It is, rather, the crucial point. It is the essential difference between American forces and Al Qaeda. It is the difference in cloth between a person like the President of the United States of America and someone like Osama Bin Laden.

More than two-hundred years ago, the country’s founding fathers threw off the mantle of oppression via the divinely inspired rule by monarchs and ushered in an unprecedented system of equality and opportunity with the timeless words, “We hold these truths to be self-evident, that all men are created equal…” Engraved on the United States Supreme Court building is the logical conclusion of such a profound realization, “Equal justice under the law”.

No nation in which all men were created equal could stand to labour under the biased dictates of despotic kings. Rather, a commitment to the generation and rule of laws that would be equally applicable in a universal fashion became the benchmark. To quote Adams once again, the goal was, “a government of laws, and not of men.” The application of such a vision was, needless to say, riddled with shortcomings, but the struggle to achieve a more perfect union continues apace and to this day.

But the seeds were there and the most powerful element of their germination was not just the prosperity they have visited upon their birthright, but the astounding fact that they offer a blueprint for other fledgling nations. It is the inherent portability of the American dream that has made the US the truly indispensable nation. As geo-political and military strategist Thomas PM Barnett has said, “America is modern globalization’s source-code“.

Perhaps no one is more aware of this than Osama Bin Laden. The portability, the flexibility, and the promise of America’s dream of equality and opportunity are precisely what catalyzed his unspeakable attack that, as so many have suggested, changed everything. Bin Laden and Al Qaeda destroyed the twin towers and badly damaged the Pentagon, but the buildings themselves were not ultimately their target.

It was the dream, the spirit and concept of America, the system of laws that enable a way of life that stands antithetically to a his stagnant worldview that Bin Laden sought to destroy. And Bin Laden said as much himself more than a year later in his now infamous, Letter to the American People,

It is saddening to tell you that you are the worst civilization witnessed by the history of mankind:

You are the nation who, rather than ruling by the Shariah of Allah in its Constitution and Laws, choose to invent your own laws as you will and desire. You separate religion from your policies, contradicting the pure nature which affirms Absolute Authority to the Lord and your Creator. You flee from the embarrassing question posed to you: How is it possible for Allah the Almighty to create His creation, grant them power over all the creatures and land, grant them all the amenities of life, and then deny them that which they are most in need of: knowledge of the laws which govern their lives?

I find it difficult to imagine that Osama Bin Laden has ever been stupid enough to believe that his war against the West is truly military in nature. The violence inflicted is a means to an end. Rather than running the fool’s errand of trying to destroy America the edifice, Bin Laden seeks and has always sought to destroy the ideas and values of America.

In their zeal to beat Bin Laden and their belief that this is a different war that requires different tactics and a different kind of determination and focus, Andy McCarthy, Liz Cheney, and their ilk have, in fact, played directly into Bin Laden’s hands. As Daniel Henninger of the Wall Street Journal wrote in April 2006, “Yes, September 11 changed everything, and it’s time to start talking about whether the changes are helping us, or them.”

The more I watch the post-9/11 America, the more I am drawn inexorably towards the conclusion, “them”.

Whether I am considering the recklessness of America’s foray into Iraq — an action that some consider itself to be illegal and that has drastically impacted the country’s standing in the world — or the warrantless wiretapping initiated by executive order and carried out by the NSA. Whether I am weighing the infringement of civil liberties enabled via the Patriot Act or potential rendition and mistreatment of US citizens like Amir Meshal. Whether I am cringing at the horrifying treatment of prisoners at Abu Ghraib — treatment whose roots, it would appear, went far deeper than the ill-begotten ideas of a few bad apples — or shuddering at the decision to use torture in lawless places like Guantanamo Bay as a means of intelligence gathering — a decision that former Vice President Dick Cheney defends on Sunday talk shows to this day. And now, as I watch Liz Cheney and Andy McCarthy attack lawyers who believe, as Adams once did, that no matter their status as potential enemy, “no person should face a trial without counsel”, I can’t but conclude that America has been pummeled relentlessly, year after year with a comprehensive and insidious attack on the very notion of lawfulness binding America’s actions to a modicum of decency and civility and a respect for liberty and autonomy.

More than just in a single and exceptional instance or two, McCarthy and Cheney, among others, have systematically and in some cases aggressively waged a campaign of dismissiveness to outright animosity against those values and that spirit which have historically made America a beacon of light and of freedom. It is also a campaign ultimately to undermine those very values and the system of laws that causes Osama Bin Laden to describe America as, “worst civilization witnessed by the history of mankind”. Given these words from the enemy, shouldn’t these be the very laws, they very values that defenders of America work diligently to protect and reinforce. According to Cheney and McCarthy, apparently not.

Ironically, those who have mounted a defense against and dared to utter objection to McCarthy and Cheney’s degradation have been labeled, as this handful of DoJ lawyers, terrorist sympathizers and, themselves, enemies of the state. Kerr may be right that these lawyers and those others who have objected to the subjection of American values to crude and ugly fear mongering ought not to be considered heroes. But their respective calls to action are, in their very essence and historical context, a defense of that which is timelessly American.

No major military attacks waged by Bin Laden have successfully occurred on American soil since September 11, 2001. But, in some senses, none have needed to be successfully waged. The attacks have continued from within and without Bin Laden having to lift so much as a finger.

Liz Cheney, Andy McCarthy, and their fellow travelers believe that some Americans are rightly accused of aiding and abetting the enemy in time of war and I believe they are correct. They need only look in the mirror to confront the conscience of the guilty parties.

Related posts...

• Re-Thinking Political Coalitions
• Grab Bag Posting
• Pass The Damn Bill