More Than Words
Liz Cheney says terrorists have no rights. Also, you're a terrorist.
It can be argued that when Liz Cheney and Bill Kristol accused nine lawyers in Attorney General Eric Holder's Justice Department of being the "al-Qaida Seven," working in the "Department of Jihad," they were simply exercising their First Amendment right to say anything that would get them on a talk show. This is, after all, America. The right to cynically accuse someone of being a terrorist is protected under the Constitution.
You would think, however, that when Cheney and Kristol launched their execrable "Keep America Safe" Web ad, they would have been very, very careful with their words. In the ad they accuse seven Justice Department lawyers and two colleagues—all of whom had represented Guantanamo detainees—of being members of the Department of Jihad. A screen shot of Osama Bin Laden and a creepy voice-over asks of these attorneys, "Whose values do they share?" Thanks to people like Kristol and Cheney, people take accusations of this sort very seriously. The Justice Department reports being swamped with panicked phone calls since the ad started running this week. In 2010, calling someone a Bin Laden-loving jihadist isn't just meaningless partisan hackery.
Ten years ago, these were just words. Ten years ago, someone accused of being a terrorist had recourse to the same panoply of rights as everyone else. Ten years ago, an accused terrorist still had the right to a trial, for instance. But thanks to people like Liz Cheney and her dad, the Sixth Amendment right to a "speedy and public trial, by an impartial jury" is gone, once you've been branded a terrorist. Just ask Khalid Sheikh Mohammed. After 9/11, once you're branded an enemy combatant, you can be held for years without any of your constitutionally protected rights, including the right to be told of the charges against you or to confront the witnesses against you. Thanks to people like Cheney, those alleged to be members of al-Qaida are stripped of their Sixth Amendment right to prove they are not.
But that's not all. Ten years ago, if you labeled someone a terrorist, he had an Eighth Amendment right to be free from torture, since the very idea of "cruel and unusual punishment" was anathema, even for our enemies. But thanks to people like Liz Cheney and the brave souls at the Bush Office of Legal Counsel, it's OK to torture terrorists these days. As long as you're pretty sure they're terrorists. This is good news for the Cheney way of thinking, because it means that you can abuse a possible terrorist into admitting that he actually is a terrorist without all that fact-finding necessitated by a criminal trial.
But there's even more. Ten years ago, if some paranoid hysteric accused you of being an al-Qaida sympathizer or a jihadist, you could find a lawyer to help you make the case that you were not. But in the ever-expanding war on the Bill of Rights being waged by Liz Cheney, once you're designated a terrorist, you lose your Sixth Amendment right to counsel. Because just by representing you—even if you're acquitted—your lawyers become terrorists, too!
Given that the Bill of Rights pretty much evaporates once you've been deemed a jihadi lover of Bin Laden, you might think Liz Cheney would be super-careful tossing around such words. They have very serious legal implications. Not to mention that some of her dad's favorite people, from Alberto Gonzales to Ted Olson, scolded the then-top Pentagon official for detainees, Charles "Cully" Stimson, for suggesting on a talk radio show in 2007 that American corporations should boycott law firms that provided pro bono assistance to detainees. Stimson was forced to apologize and resign for his comments. Lucky for Cheney, she doesn't work for the Pentagon, so she doesn't have to resign. She merely has to be ridiculed by Bill O'Reilly.
Liz Cheney isn't careful about the words she throws around. She uses terrorist and killer the way normal people use words like salt and pepper. To her, they are just words. That's probably the scariest part of all.
When the "al-Qaida Seven" and their two DoJ colleagues fought to defend alleged terrorists at Guantanamo Bay, they weren't fighting to protect jihadist murderers. They were defending the U.S. Constitution—the great whomping chunks of the Bill of Rights that Cheney and her friends are so eager to write out of existence. They did it because that's what lawyers are ethically obligated to do. They did it because—as Spencer Ackerman points out—the Military Commissions Act of 2006 expressly provided that detainees get defense lawyers. And they did it, as Jay Bookman notes, for the same reason John Adams agreed to represent British soldiers charged with killing civilians during the Boston Massacre in 1770. Because long before Liz Cheney was born and long after she's gone, the Bill of Rights requires serious people to take it seriously.
I should probably disclose at this juncture that I know several members of the nefarious "al-Qaida Nine." If I ever get to meet the rest of them, I will buy them a beer. Which, through the magic of Liz Cheney's transitive guilt property, doubtless makes me a jihadist as well.
Liz Cheney will weasel her way out of this week's hyperbole. She's already trying to parse her way out of the embarrassing fact that the Bush Department of Justice and Rudy Giuliani's law firm also housed traitorous Gitmo lawyers. Now, Keep America Safe says its problem is only with pro bono Gitmo lawyers. Yesterday, Cheney told Washington Times radio she "doesn't question anybody's loyalty." She just objects to the criminal justice model of dealing with terror. Those words jihad and al- Qaida? Having helped make them the foulest words in America, she wants you to think they're mere words.
Too late. Wednesday night, Liz Cheney told Bill O'Reilly that Guantanamo prisoner Omar Khadr "killed Americans." His trial doesn't start until July. So before you call the Justice Department to question the loyalty of the "al-Qaida Nine," ask yourself whether you really want to take the Bill of Rights out of the hands of the lawyers, courts, and officials sworn to defend it. Having worked for years to ensure that the word jihadist is legally synonymous with guilty, Cheney cannot be allowed to use it casually to describe anyone she simply doesn't like.
Dahlia Lithwick writes about the courts and the law for Slate.
Photograph of Liz Cheney by Brendan Hoffman/Getty Images.