Defenders 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.
In the 234 years since Adams and his compatriots fought for our independence, the United States has held millions of enemy combatants -- and not one had ever filed a successful habeas corpus petition until the habeas campaign on behalf of Guantanamo detainees began. Thanks to this campaign, Guantanamo detainees now enjoy unprecedented rights far beyond those afforded to lawful prisoners of war with full Geneva protections. Nothing in the Geneva Conventions provides POWs with the right to counsel, access to the courts to challenge their detention, or the opportunity to be released prior to the end of hostilities. Yet thanks to the habeas campaign, al-Qaeda terrorists who violate the laws of war now enjoy all these privileges.
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