In his opening round of questioning at the Senate Judiciary Committee’s confirmation for Judge Ketanji Brown Jackson, Chairman Dick Durbin (D., Ill.) endeavored to help the judge refute criticisms of her representation of terrorists at Guantanamo Bay. They suggested that this was of a piece with the longstanding American tradition, engraved in our Constitution, that everyone is entitled to a lawyer. Judge Jackson summed it up this way: “That is the role of a criminal defense lawyer.”
The problem with this revisionist history is that the detainees at Gitmo were not criminal defendants. They were unlawful enemy combatants captured during their war of aggression against the United States. They were not entitled to counsel. Never in the history of the United States had it been the case that foreign fighters detained in wartime were entitled to legal representation — they are not detained in the legal system, but under the laws of war.
Jackson noted that the law eventually changed, allowing combatants to challenge their detention. What she and Durbin neglected to mention is that such challenges were not criminal proceedings. They were habeas corpus petitions.
It’s a salient difference. The Constitution does not entitle habeas corpus petitioners to counsel. Only those charged with crimes are guaranteed legal representation. It is thus a commonplace in the American criminal-justice system that imprisoned convicts who file habeas corpus petitions challenging their detention must represent themselves. They are not entitled to counsel, and if they can’t afford lawyers, there is no expectation that the taxpayers will subsidize legal representation.
The lawyers who volunteered their services to represent America’s enemies have for years analogized their work as no different from John Adams’s defense of British soldiers after the Boston Massacre in 1770. Durbin invoked this episode today. But the British soldiers were criminal defendants accused of murder in a court of law. It would be five years before hostilities erupted at Lexington and Concord. The British troops in question were not enemy combatants, and they were not detained as prisoners of war.
The Left has won the narrative battle regarding detention and interrogation issues in the war on terror, so the Left is writing the history. As Senator Durbin contentedly observed this morning, his Republican colleague, Senator Lindsey Graham, an accomplished military lawyer, agreed with Durbin in yesterday’s opening session that everyone is entitled to a lawyer, including foreign terrorists captured in wartime.
That doesn’t make it so. The lawyers who worked for anti-American jihadists at Gitmo were volunteers; their “clients” were not entitled to their services.
Moreover, the lawyer-Left position on this issue would be easier to abide if it were consistently applied. Progressive Democrats have taken the position that former president Trump and those who worked with him to challenge the results of the 2020 election are not entitled to legal representation. They have put enormous pressure on lawyers and firms to drop these people as clients. There is now an ongoing project to have lawyers disciplined and disbarred if they played any role in enabling Trump to file legal challenges to the election. One needn’t be persuaded by these legal challenges — I think most of them were frivolous — in order to acknowledge that Trump had the right to file them and to retain counsel for that purpose.
Democrats can’t have it both ways. They can’t volunteer their services to terrorist detainees and say they were performing an honorable role and should not be tainted by their clients’ atrocious actions yet at the same time maintain that any lawyer who provided legal services to Donald Trump should be ostracized as a threat to our Constitution.
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