The following excerpts are taken from Marc Thiessen’s book Courting Disaster — and relevant to the discussion post below regarding Obama Justice Department officials who worked previously defending terrorists (point #3 is huge):
Others say that the lawyers at these firms are in fact following a great American tradition, in which everyone gets a lawyer and their day in court. Not so, says Andy McCarthy, the former Assistant U.S. Attorney who put Omar Abdel-Rahman (the blind sheik) behind bars for the first bombing of the World Trade Center in 1993.
“We need to be clear about what the American tradition is,” McCarthy says. “The American tradition is that the 6th Amendment guarantees the accused-that means somebody who has been indicted or otherwise charged with a crime-a right to counsel. But that right only exists if you are accused, which means you are someone who the government has brought into the civilian criminal justice system and lodged charges against. ”
The terrorists at Guantanamo, McCarthy says, do not qualify because they have not been brought into the civilian justice system for criminal trial. “They are being held as enemy combatants in a war which has been authorized by Congress.”
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Indeed, when the lawyers began litigating these cases, there was no precedent for a right to representation for enemy combatants. McCarthy says, “We’ve had around 5 million prisoners of war in the history of the United States-that’s probably a conservative estimate. Before 2004, it would have been absurd to suggest that enemy combatants in a war had a systematic right of access to U.S. courts.”**********
More than that, these lawyers, no doubt intentionally, are encouraging enemy combatants to violate the laws of war. As former Defense Department General Counsel Jim Haynes explained in a 2008 speech, “During World War II, the United States detained more than 400,000 German and Italian prisoners of war in camps sprinkled around the United States, and had zero successful habeas petitions. Today, we have less than 300 unlawful combatants detained at Guantanamo Bay, Cuba, and 246 ongoing habeas cases to go with them…. The legal process afforded these detainees far exceeds anything that German or Italian soldiers enjoyed at any time during their captivity within our borders.”
The danger, according to Haynes, is that, “If you give more protections and privileges to Al Qaeda fighters than to lawful combatants, then you will strip away any legal incentives for people to fight according to the rules…. You encourage countries and groups to develop corps of unlawful fighters. Ultimately, you increase the savagery of future conflicts.”
Haynes asks: Why stop at Guantanamo? “Coalition forces hold tens of thousands of detainees in Iraq and over a thousand in Afghanistan. If the detainees in Cuba receive habeas, should those detainees in Iraq and Afghanistan receive it as well? Instead of hundreds, why not tens of thousands of military detainee habeas cases in federal courts?”" These habeas corpus cases, Haynes says, are creating “an incentive to violate the laws of war…. What’s in it for any foe of the United States to abide by those rules if one gets better treatment upon capture by violating them?”
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In fact, Guantanamo detainees now enjoy rights far beyond those afforded to prisoners of war with full Geneva protections. Nothing in the Geneva Conventions provides POWs with the right to counsel, access to the courts to challenge their detention, or the opportunity to be released prior to the end of hostilities. Yet thanks to the habeas corpus campaign, al Qaeda terrorists who violate the laws of war enjoy all these privileges.