March 12, 2010

"The analogy is clever, but wholly inaccurate"

The "al-Qaeda seven" aren't like John Adams:

John AdamsDefenders of the habeas lawyers representing al-Qaeda terrorists have invoked the iconic name of John Adams to justify their actions, claiming these lawyers are only doing the same thing Adams did when he defended British soldiers accused in the Boston Massacre. The analogy is clever, but wholly inaccurate.

For starters, Adams was a British subject at the time he took up their representation. The Declaration of Independence had not yet been signed, and there was no United States of America. The British soldiers were Adams' fellow countrymen -- not foreign enemies of the state at war with his country.

Second, the British soldiers were accused of a crime. The constitution was not yet in place, but as I pointed out in my column this week, former federal prosecutor Andy McCarthy explains that the great American tradition later enshrined in the Sixth Amendment "guarantees the accused -- that means somebody who has been indicted or otherwise charged with a crime -- a right to counsel. But that right only exists if you are accused, which means you are someone the government has brought into the civilian criminal justice system and lodged charges against." Unless they have been charged before military commissions or civilian courts, the al-Qaeda terrorists held at Guantanamo do not have a right to counsel under the Sixth Amendment. They are not accused criminals. They are enemy combatants held in a war authorized by Congress....
You have rights antecedent to all earthly governments; rights that cannot be repealed or restrained by human laws; rights derived from the Great Legislator of the Universe.
-- John Adams
Posted by John Weidner at March 12, 2010 1:46 PM
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