Lawyers for the enemy

William McGurn:

Within the ranks of our leading law schools, law firms and legal centers, it would be hard to find a cause more popular than the detainees of Guantanamo Bay. Every lawyer wants his own detainee or detainee group. The result is that dozens of the world's most dangerous men now have their own legal Dream Teams.

In this context, wouldn't it be refreshing to hear the dean of some Ivy League law school, or a partner in a white-shoe law firm, stand up and say these words: "As part of our pro bono commitments, we hereby offer our services to the overworked men and women trying to keep our nation safe from terrorist attack."

You can imagine the reaction. Back in 2007, we had a taste when a Defense Department official suggested that corporate America might look askance at the high-priced law firms devoting their time and talents to those held at Gitmo. In accord with long-established Beltway rituals of public penance, this official soon published "An Apology to Detainees' Attorneys" in the Washington Post -- and soon after resigned. Notwithstanding what this outcome said about the real balance of power, the incident only confirmed the lawyers' view of themselves as lonely Davids taking on Goliath.

Well, maybe not as lonely as they like to make out. In the popular mind, the 200 or so Guantanamo detainees filing for habeas corpus in federal district courts are up against the full powers of the United States government. And they are. But practically speaking, this means that 60 or so Justice Department lawyers are handling the bulk of that legal load.

Against these 60 attorneys are arrayed some of our nation's most prestigious private firms. Last year, at a dinner at Washington's Ritz-Carlton hotel, the National Legal Aide Defender Association bestowed its "Beacon of Justice Award" on 50 law firms for their pro bono work on behalf of the detainees. These firms included WilmerHale; Jenner & Block; Sutherland, Asbill & Brennan; Paul Weiss Rifkin; Mayer Brown; Weil, Gotshal & Manges; Dechert; Pepper Hamilton; Venable; Perkins Coie; Hunton & Williams; and Fulbright Jaworski. These firms in turn are joined by law professors from Stanford, Yale and Northwestern right on down to Fordham.

The imbalance was illustrated by a scene last week at the federal courthouse building in Washington, D.C. There Judge Thomas Hogan was to consider rules governing the habeas corpus petitions of the detainees. That meant half a dozen Justice Department lawyers waiting in a room packed wall-to-wall with high-priced partners -- many backed up by legions of associates, outside legal experts, human-rights centers, and concerned law students.

Andrew McCarthy, the former assistant U.S. attorney who successfully prosecuted some of those responsible for the first World Trade Center attack in 1993, knows the disparity firsthand. His organization, the Foundation for the Defense of Democracies, is one of the few filing in defense of the government. "When we file an amicus," he says, "it goes on top of a three-inch pile. Against that is a 20-foot stack of thick amicus [briefs] written by everyone from the American Civil Liberties Union to [Yale Law School Dean] Harold Koh."

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I think it may be more hatred of this administration than concern for the enemy, but in either case it is wrong and misguided. The detainees at Gitmo should be held until the war is over, unless the people holding them decided it will serve our purposes to set them loose somewhere else. That should not be up to a court. These guys should have no right to he US court system, unless the administration decides to try them for war crimes, in which case they should have the rights to appeal as set forth in the legislation governing their trials.

What is happening here is lawfare run amok. Those defending these men captured on teh battlefield would prefer to see our troops greeting the enemy with legal papers and a Miranda warning rather than military force. We tried this inept method of fighting terror in the 1990s and got 9-11 as a result. Their goal is to take us back to the failed policies of the past which put us on the strategic defensive and turn over our intelligence methods and sources to that same wicked enemy.