My old buddy Andy McCarthy lets one rip at the New York Times Room for Debate Blog about how the AQ7, the pro bono lawyers who helped Guantanamo detainees are not heroes, or even decent human beings, but traitors to the American people. Of lawyers defending terrorists, he says:
This is a ludicrous concept, so the profession has to engage in serial deceptions to sell it. Most prominent among these is the assertion that every one, no matter how unpopular, is entitled to counsel. Nonsense.Be careful or you’ll get some of the rabid foam on your tie.
Only criminal defendants are entitled to counsel, and those who represent them do indeed perform a constitutionally valuable function. It has never been the law, however, that war prisoners are entitled to counsel to challenge their detention as enemy combatants.
. . .
The lawyers chose to offer themselves, gratis, to our enemies for litigation the Constitution does not require. They did so knowing that this litigation would be harmful to the war effort — a fact the Supreme Court emphasized when it denied war prisoners the right to file habeas claims in 1950. The fact that we don’t forbid lawyers from doing this hardly means Americans have to approve of it.
Orin Kerr parses the post and explains why Andy’s shoes don’t match his purse. While correct, I think Orin tries to hard. It’s just not that hard to separate the reason from the rhetoric, particularly in this instance. I know that President Bush went on TV and told us we were at war. But he was never really good at details, and just because a few bombastic warmongers want to call it war doesn’t make it so.
War is what happens between sovereigns. War is not subject to redefinition at will any more than calling individuals a name, like enemy combatants, is sufficient reason to absolve us from the rules of our own game. We’ve called lots of things war in the past 50 years. In fact, we call almost everything that presents a problem a war. It’s easy. It’s just a word. It doesn’t really make it one.
So if Andy McCarthy wants to call a bunch of lawyers upholding the Constitution traitors engaging in treason, I’ll defend his right to do so because the first amendment protects it. But it’s still just words in a rhetorical war. My response is that Andy’s just being a dope.
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If you hit up google and enter the phrase ‘war on’ and then click search, you’ll find a bunch of other avenues for being right all the time without the pesky hindrance of having to prove your case or allegations or acting with some sense of decency.
War on drugs. War on poverty. War on obesity. War on Christmas! There are all kinds of wars going on right now.
By the way, I do remember Bush referring to the war on terra every other sentence, but what I don’t remember is a formal declaration of war voted on by congress.
I guess because “Declaration of war on the unwashed masses not being scared enough to re-elect us” wouldn’t have looked that good in the congressional record. They sure did win that war, though, and keep fighting it regardless.
We’ve cheapened the word “war” by applying it to whatever evil is on the radar at the moment, which is fine as far as rhetorical trucks go. But Andy McCarthy has leaped over the concept and adopted the rhetorical trick as if it was real, then taken it a step farther by attempting to apply it in a legalistic sense to deprive individuals, who are conveniently called enemy combatants or terrorists, of rights and to accuse those lawyers who represent them of treason.
We are a people constantly at “war” with someone or something, but there’s no reason to allow ol’ Andy to slip from rhetorical trick to legal accusation unnoticed. We need not reason accusations of treason just because we’ve devalued the word “war”.