The Weekly Standard pulls a Cully Stimson

Does the name Cully Stimson ring a bell?

In 2007 Stimson, in his capacity as Deputy Assistant Secretary of Defense for Detainee Affairs, made a series of bizarre statements on NPR criticizing the law firms (many of them among the nation’s best) whose partners or associates were representing detainees, disgracing himself (he subsequently resigned), the legal profession and the very idea of American justice, which requires equality under the law no matter how unpopular the defendants.  This bizarre rant of Stimon’s prompted a very pointed response co-authored by Neal Katyal, the Georgetown Law Professor who represented Salim Hamdan in the landmark Hamdan v Rumsfeld, and former solicitor general Theodore Olsen:

With the war on terror, which unfortunately may go on for generations, America doesn’t have any margin for error. The legal issues that surround this war are enormously intricate and don’t lend themselves to sloganeering-based solutions. When government officials are called “war criminals” and when public-interest lawyers are called “terrorist huggers,” it not only cheapens the discourse, it scrambles the dialogue. The best solutions to these difficult problems will emerge only when the best advocates, backed by weighty resources, bring their talents to bear. And the heavy work of creating solutions for these complicated issues can only move forward when the name-calling ceases.

I have to assume that the stunads* esteemed writers at the Weekly Standard failed to get this memo because not only does Thomas Joscelyn’s obnoxious hit piece stoop to the sort of playground shit talk that has no place in complex legal debates but he also fails to demonstrate even a remedial understanding of the issues.  Take this passage, where he attacks a Slate article written by Katyal that criticizes the Military Commissions Act of 2006 (“MCA”):

Katyal has made some other questionable comments about Hamdan and the military commissions as well. In a piece for Slate in December 2007, Katyal started off by lamenting the fact that Hamdan was not being tried in a regal Washingtonian court, but instead in a “rickety courtroom at Guantanamo.” Katyal then compared Hamdan to your average green-card holder in America…Katyal is flat out wrong when he says that the Bush administration’s military commissions were the “first time” America has attempted to dispense “justice” in such a manner. Military commissions (tribunals) have a long history in this country dating back to the founding. The Obama administration is even using them to try Gitmo detainees. What’s worse is that Katyal didn’t seem to understand that the “them” are al Qaeda. And only someone who cannot tell the difference between us and our terrorist enemies would compare al Qaeda members to “green-card holders.”

Set aside the fact that the last part of this quote is nothing more than useless political conjecture that makes the author look like a bona fide stunad polemicist.   Joscelyn trots out an old talking point about the use of military commissions throughout our country’s history.  This was not the issue in the Hamdan case.  The argument Katyal made to the Supreme Court in Hamdan was that the Executive Branch alone was not authorized by the Constitution to establish military tribunals (which actually would be a break from the long history of military commissions in this country).  Katyal writes:

The longstanding restrictions on commissions are not such disposable niceties. Rather, they are time-tested barriers to the dangerous seepage of martial law into our civilian order. To fail to enforce these limits would be to allow a dangerous and unprecedented expansion of Executive authority whose legal premise must be that the fight against terrorism justifies a reallocation of constitutional power. There would be no principled way to prevent that precedent from becoming the edifice upon which any number of actions could be grounded, even against U.S. citizens, from surveillance to indefinite detention, on the mere allegation that they are affiliates in that “war.” If fighting terrorism requires such a basic shift in our legal order, it is for Congress, not the Executive, to sayso; and Congress must say so in the most explicit of terms.

Katyal’s position and understanding of this issue was shared by a sizable portion of the legal community. For anyone interested, more amicus briefs on the constitutionality of the Executive Branch unilaterally establishing military tribunals can be found here.

Joscelyn also fails to grasp one of the most controversial portions of the MCA as written.  The statute was not only formulated to strip the ability of detainees to challenge their detention in federal court, but it also explicitly forbids resident aliens in the United States from doing so as well (more here).  A Chinese national in the United States, legally protected as a resident alien, could be detained, designated by the Executive Branch as an unlawful enemy combatant, and transferred to military custody without a chance to challenge this detention in federal court***.  An American citizen faced with the same situation would not have his or her habeas rights revoked.  Therefore, the statute did create a two-tiered system of “us” and “them” because under the law, both detainees at Guantanamo Bay and foreigners in the United States were unable to access federal courts to challenge their detentions.  Apparently, Joscelyn never bothered to read the statute or attempt to understand the law as it was written.

This issue was making its way through the courts in  Al Marri v Spagone., where a resident alien was transferred to military custody after being designated an unlawful enemy combatant, held indefinitely without being charged and was forbidden from challenging his detention in a federal court (the Fourth Circuit Court of Appeals ruled in favor of al Marri).  The Supreme Court would have heard the case, but it was dismissed as moot when the Obama Administration transferred Al Marri back to civilian custody to be tried on charges unrelated to terrorism.

Josceyln’s lack of legal knowledge is bad enough.  Worse still is the way he ends his piece:

Now, we don’t know what assignments these lawyers have taken on inside government. But we do know that they openly opposed the American government for years, on behalf of al Qaeda terrorists, and their objections frequently went beyond rational, principled criticisms of detainee policy.

Here, Joscelyn says everything he needs to say about his lack of respect of the rule of law, the Constitution and the American justice system.  Joscelyn, like Stimson, can’t bring himself to accept the notion that American justice means suspects, whether tried in a civilian court or a military court, are entitled to the best defense possible, regardless of popularity.  It is through this system, where the best on both sides advocate their positions to the fullest extent, that the rule of law prevails, whether it is John Adams defending the British soldiers accused of participating in the Boston Massacre or Neal Katyal representing clients suspected of terrorism.

That Josceyln suggests Katyal went beyond “rational, principled” criticism of the MCA is a classic case of the pot calling the kettle black.   No one “openly opposed” the American government.  Lawyers raised specific legal issues based on laws or policies perceived to be dubious either on statutory or constitutional grounds.  In many significant cases, the Supreme Court did not side with the Executive Branch (would Joscelyn suggest that the Supreme Court, in siding with “terrorists,” is also opposing our government?).  Between the series of court defeats and the redactions of a number of other legal positions maintained by the Bush Administration until the very end of the second term (memos and here and here), it seems to me that criticism of the last Administration’s positions was very warranted and quite rational.  That Joscelyn disagrees does not make Katyal irrational or unprincipled.

Olsen and Katyal conclude their article by arguing that patriotism requires a belief that the American legal system will reach the right results.  The editors and writers of the Weekly Standard should take that to heart and reconsider this shameful stance.

The same also goes for the yokels running Keep America Safe, who Walter Dellinger takes to task in today’s Washington Post.

Shameful indeed.

*** I am operating under the assumption of the majority opinion in Boumediene v Bush in that the procedures the MCA set forth to guarantee detainees an adequate substitute for a habeas challenge in a federal court were inadequate.

Brief update: the term “stunad” is Italian slang for stupid person.