K&S understands how the game is played. The firm wants to be perceived as supportive of gay marriage. In the same way, through its pro bono work for terrorists and death-row murderers, it wants to be perceived as supportive of judicializing warfare and expanding the rights of criminals. The firm figures it can’t afford to be on the wrong side of the culture war.
As an institution, the profession is the vanguard of the movement Left. Its votaries make their choices about representation based on progressive politics. Attorneys who are resistant to the cause but desperate to remain in the club are pressured to conform or at the very least to profess admiration for the heroic good faith in which the Lawyer Left remorselessly pursues its agenda.
In any case, as I’ve made clear before, those who coined the term “al-Qaeda Seven” were obviously not saying these lawyers were members of al-Qaeda or that they endorsed terrorism — though they are, for my taste, too indifferent to the barbarity of terrorism. The point is that they made a choice to do something they did not have to do, that no lawyer had to do. It was therefore fair to judge them on their choice, to infer a sympathetic ear for the terrorist portrayal of a corrupt and unjust America.
Calling these attorneys the “al-Qaeda Seven” is, I contend, no more offensive than calling attorneys who choose to represent the mob “mob lawyers.” Millions of Americans detained in our civilian prisons file habeas suits, alleging that the procedures that landed them in jail, or their conditions of confinement, are unlawful. Our law invites this, but the inmates must either represent themselves or find a lawyer willing to take the case. For the lawyer, that often means choosing to work for free — that is, deciding that the inmate’s cause is more worth his time and effort than other pro bono causes (say, representing CIA interrogators or defending DOMA) to which he’d otherwise be able to donate his services.
An attorney who chooses to work for such clients has made a conscious choice to help them litigate their wartime suits against the American people — just like the conscious choices King & Spalding makes to represent murderers on death row or to drop DOMA like a hot potato.
