Left wants to prosecute thought crimes

David Rivkin and Lee Casey:

Lynching lawyers, as Shakespeare once suggested, has never appealed much to the legal profession itself – literally or figuratively. But an exception apparently will be made for a group of attorneys who advised President Bush and his national security staff in the aftermath of 9/11. They've been subject to an increasingly determined campaign of public obloquy by law professors, activist lawyers and pundits.

Their legal competence and ethics have been questioned. Suggestions have even been made that they can and should be held criminally responsible for "war crimes," because their legal advice supposedly led to detainee abuses at Abu Ghraib and elsewhere.

The targets of this witch hunt include some of the country's finest legal minds – such as law Prof. John Yoo of the University of California at Berkeley, Judge Jay Bybee of the Ninth Circuit Court of Appeals, and William J. (Jim) Haynes II, former Pentagon general counsel. Others frequently mentioned include former White House Counsel Harriet Miers, former Attorney General Alberto Gonzales, and former Undersecretary of Defense Douglas Feith.

Many positions taken by these attorneys, laying the fundamental legal architecture of the war on terror, outrage international activists and legal specialists. Nevertheless, in a series of cases beginning with Hamdi v. Rumsfeld (2004), the U.S. Supreme Court has upheld many of their key positions: that the country is engaged in an armed conflict; that captured enemy combatants can be detained without criminal trial during these hostilities; and that (when the time comes) they may be punished through the military, rather than the civilian, justice system.

The Court has also required that detainees be given an administrative hearing to challenge their enemy-combatant classification, ruled that Congress (not the president alone) must establish any military commission system, and made clear that it will in the future exercise some level of judicial scrutiny over the treatment of detainees held at Guantanamo Bay – although the extent of this role is still being litigated. Overall, the administration has won the critical points necessary to continue the war against al Qaeda.

Most controversial, of course, was the Bush administration's insistence that the Geneva Conventions have limited, if any, application to al Qaeda and its allies (who themselves reject the "Western" concepts behind those treaties); and the administration's authorization of aggressive interrogation methods, including, in at least three cases, waterboarding or simulated drowning.

Several legal memoranda, particularly 2002 and 2003 opinions written by Mr. Yoo as deputy assistant attorney general for the Office of Legal Counsel, considered whether such methods can lawfully be used. These memoranda, some of which remain classified, explore the limits imposed on the United States by statute, treaties, and customary international law. The goal clearly was to find a legal means to give U.S. interrogators the maximum flexibility, while defining the point at which lawful interrogation ended and unlawful torture began.

Behind this inquiry is a stark fact. In this war on terror, the U.S. must not only attack and defeat enemy forces. It must also anticipate and prevent their deliberate attacks on its civilian population – al Qaeda's preferred target. International law gives the civilian population an indisputable right to that protection.

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There is much more.

The people pushing these arguments for prosecuting these lawyers are on a slippery slope of their own making. Most of them are terrorist right advocates who have become the useful idiots of al Qaeda. If their activity prevents us from stopping another act of mass murder for Allah, the surviving victims of such an attack will not think them so saintly.

They are able to make their arguments now only because of the success of the operations to find and detect enemy operations. Were we not so successful, the public would not tolerate their campaign to make the job more difficult.

Their position on the Geneva Conventions is hypocrisy on stilts. While the conventions are supposed to be between the contracting parties, which al Qaeda is not, the useful idiots of al Qaeda view the conventions as a unilateral contract binding only the US and its allies. They never complain about al Qaeda's blatant violations of the conventions. Al Qaeda's very strategy is a war crime under the conventions and these people do not care.