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.

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“And then, where is the use of torture? It is a slippery trial and uncertain (says Ulpian) to convince by torture. For many says (says St Augustine again) he that is yet but questioned, whether he be guilty or no, before that be known, is, without all question, miserably tortured. And whereas, many time, the passion of the Judge, and the covetousness of the Judge, and the ambition of the Judge, are calamities heavy enough upon a man that is accused. If the Judge knew that he were innocent, he should suffer nothing. If he knew he were guilty, he should not suffer torture. But because the Judge is ignorant and knows nothing, therefore the prisoner must be racked and tortured and mangled.”  ~ John Donne

The obvious thing is this: what separates us from the terrorists and from our medieval ancestors  is that we uphold the basic principles of law and order which are founded on even more basic concepts of human dignity and justice.  (In Britain torture was outlawed in 1628)

So the whole debate – every last piece of the debate, even arguments that seek nuance that I generally agree with – to me, is an exercise in futility (and so, of course, is this post).  Every apology for torture is a denial of the separation between us and them, and between the modern and ancient West.  Every attempt to re-define what constitutes torture is an attempt to re-define what makes us American.  Every denial of wrong-doing is an admission that the very forces we seek to defeat have  in fact sullied with fear our higher ideals, have achieved a terrible victory at a terrible cost.

That’s the point of terror, after all – not to merely kill, but to transform the world through fear. [Read more →]