Attacking the DOJ and The Constitution

I cannot believe I missed the story regarding Liz Cheney’s and Bill Kristol’s attack ad of the Obama DOJ. In case you do not care to watch the linked video, I will sum it up for you: The ad suggests we should question the loyalty of AG Eric Holder and others at the DOJ. The reason: The DOJ now employs several attorneys who have represented detainees at Guantanamo Bay (GITMO).

The repugnant nature of this, as well as the ignorance behind it, leaves me uncertain of where to begin. It is incredible how little knowledge these two, and those who share their views in this area, have of our Constitution and its numerous protections. They appear to have little regard for the document, too. Maybe it is unfair to say they are ignorant of the law; perhaps they just do not care about our government upholding the law. If Liz Cheney feels that way, she certainly has something in common with her father.

I guess I will start by saying that I had the privilege while at UT Law to work on arguably the defining case regarding the rights of detainees at GITMO, Al Odah/Boumediene v. United States. I worked alongside incredibly smart students and professors who were committed to upholding and protecting the Constitution. I can say unequivocally that “sympathy for terrorists and terrorism” does not enter into the equation when doing this kind of work.

Neil Katyal, one of the lawyers at the DOJ implicated in the ad, worked closely with our professors on the Al Odah case. For us, as I am sure was the case for he and everyone else who contributed in these cases, it was a constitutional issue. The main issue, put succinctly, was that if the President has the authority to detain “enemy combatants”(a term so loosely defined to encompass all sort of unwitting persons) indefinitely and without giving them the opportunity to contest that detention, a basic constitutional right will have been ignored. Thankfully, the Supreme Court agreed and gave detainees the ability to challenge their detention in civilian courts.

Anyway, I suppose the point I intended to make with all this was that it is absurd to suggest, as Cheney and Kristol have, that lawyers who are simply doing their job, the job they swore to undertake upon entering the bar, are terrorist sympathizers. What makes our Constitution so great is the protections it guarantees to the people against its government; the Founders established the seperation of powers and other protections so that the United States would not one day become an autocracy. If you do not believe me, ask yourself these questions: Why did we declare our independence from England in the first place? What might we have learned about our experience under English rule? Did the Founders like the idea of power consolidated in one leader? (Sorry, that is the teacher coming out in me.)

Many who opposed our efforts argued that the Constitution did not apply to detainees at GITMO because they were not U.S. citizens and were not being detained on U.S. soil. I honestly cannot recall if the latter point was specifically addressed in the SCOTUS opinion referenced above and it is certainly true that the detainees were not citizens. But the issue was the incredible expansion of executive power sought by the Bush administration that ran counter to our principles and threatened our liberties. How? Because of the possibility that such power, if unchecked, could someday lead to detention without trial of U.S. citizens on American soil. I always argued that the Constitution acts as a constraint on government officials sworn to protect it, no matter where they acted and whom they acted against. In other words, Bush’s actions were not suddenly “legal” simply because perpetrated against non-citizens or on foreign soil; the Constitution followed him whereever he goes. At least, it should have.

My apologies as I continue to meander through this post, though I am certainly earning the subtitle of this blog. So let me just link to Glenn Greenwald over at Salon who addresses the aforementioned ad and the MSM’s response better than I possibly could. Please read his initial take here and his take on CNN’s response here. Thanks.

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