AS AN OFFICER of the court, I get it.
Just because you defend the criminal doesn't mean you share his beliefs. That's why I'd never call a lawyer who represented a Guantanamo detainee a terror sympathizer. As a caller to a recent radio talk show I hosted put it, Gitmo lawyers chose their clients out of the conviction that everyone deserves a defense. (Others might have been excited at the prospect of the academic challenge. And we'd be naive to deny that some took on these clients as a way to thumb their highly-trained noses at the Bush administration.)
Even so, I disagree with those who, like Liz Cheney, are impugning the integrity and patriotism of the Gitmo lawyers. While I find their clients repugnant, and while you'd have to waterboard me before I'd agree to represent any of the jumpsuited gang, I defer to my colleagues and their professional choices. We view the Constitution differently, but it's a legitimate disagreement.
What I have a problem with is the possibility that people who worked zealously on behalf of terror suspects might now be in a position to direct the policies and devise the protocols that will affect the terror prosecutions.
It's a little thing called "conflict of interest." And it has nothing to do with politics, despite what some people would have you believe.
True, there's probably a significantly greater likelihood that a lawyer with sympathies for the American Civil Liberties Union would be rushing to the defense of a suspected jihadist than, say, a member of the conservative Federalist Society.
But that's not because ACLU folk are more concerned with civil rights than their conservative colleagues. It's also not because they have a particular sympathy for al Qaeda, despite what some conservatives contend. It's simply that they have a much more expansive view of the Constitution than people like me, who don't think enemy combatants are entitled to the same treatment as criminal defendants.
But what I find interesting is that the Department of Justice is so leery of revealing the identities of attorneys who used to work for Khalid Sheikh Whoever and now get a paycheck from Uncle Sam.
They work for the same Cabinet department that made sure every single attorney who was fired by the Bush administration got a nice high-profile soapbox to whine from. And we now know how bogus "Attorney-gate" was, particularly since the Obama administration has been at least as partisan as the Bush administration in its Justice appointments.
But according to critics like the New York Times, forcing Attorney General Eric Holder to reveal the identities of attorneys who might have a conflict of interest is actually akin to a McCarthyite witch hunt.
In an editorial titled "Are You or Have You Ever Been a Lawyer," the Gray Lady writes: "In this era, demagogues on the right are smearing loyal Americans as disloyal and charging that the government is being undermined from within. These voices - often heard on Fox News - are going after Justice Department lawyers who represented Guantanamo detainees when they were in private practice."
Talk about hyperbole. Sen. Charles Grassley has been attempting to get Holder to reveal the names of lawyers on his staff who have done legal work for Gitmo guys. He wants to know in what capacity they are currently employed.
It's a legitimate question, particularly since the DOJ has sworn that it has been following all of the conflict-of-interest rules. If that's the case, there should be no problem in responding to the senator.
But all he got was a letter confirming that some employees represented Gitmo detainees, without explaining their particular duties, much less their identities. (Fox News has now ferreted out the names, and Justice has confirmed them. But we still don't know their exact responsibilities.)
The situation is analogous to a lawyer on one side of a suit going to work for a law firm representing the other side. At the very least, they have to be proscribed from having anything to do with the legal proceeding.
WHY SHOULD we trust that the potentially very serious conflicts have been neutralized, particularly when we're dealing with national security?
It's also troubling that some of the lawyers in question are suspected of having leaked the identities of CIA interrogators to the press. If that's true, our chief federal law-enforcement officer would seem to be even more obliged to tell us who they are, and what they're working on.
Again, this isn't a witch hunt. No burning torches are being raised against my fellow officers of the court, who themselves should be willing to have this information revealed if they truly respect the system they serve.
Christine M. Flowers is a lawyer. Listen to her Thursdays on WPHT/1210 AM, 10-midnight.