McCarthy's post triggered a sharp rebuke from George Washington University law school professor Orin Kerr, a former recipient of a prestigious Federalist Society award. On the conservative legal theory blog, The Volokh Conspiracy, Kerr blasted McCarthy's arguments as "ridiculous."
Taking on McCarthy's "basic argument that lawyers who represented detainees ‘aided the enemy in wartime,' and should normally be guilty of treason," Kerr wrote:
If that's true, isn't the federal judiciary, and aren't the Justices of the Supreme Court, also guilty of treason? In fact, aren't the judges the kingpins of this treasonous plot to "hurt the war effort"? After all, lawyers only make arguments to judges. It doesn't actually help detainees to make argument courts reject. It's up to the judges to rule one way or the other. If the lawyers are aiding the enemy, they're only minor players: It's the judges, and especially the Justices, who are the real guilty parties, as they're the ones that actually help the detainees by ruling in their favor. Does McCarthy think the Justices of the Supreme Court are guilty of aiding the enemy, and that (if we treat them like everybody else) they should be "indicted for coming to the enemy's aid during wartime"?
As noted by The New York Times, the controversy, which has been fueled by Sen. Charles Grassley's demands that Attorney General Eric Holder (above, left) release names and information of DOJ attorneys who have represented detained terrorism suspects, and Liz Cheney's group Keep American Safe, which produced an inflammatory YouTube video referring to the DOJ attorneys as the "Al Qaeda Seven," has revealed a split among conservatives.
Richard A. Epstein, a University of Chicago law school professor and as The Times described him, "a revered figure among many members" of the Federalist Society, told the newspaper, "There's something truly bizarre about this. Liz Cheney is a former student of mine - I don't know what moves her on this thing."
Epstein and Kerr aren't the only conservatives questioning the tactics. As noted earlier this week, another prominent conservative, former Independent Counsel Kenneth Starr signed a letter calling the attacks on the DOJ attorneys "shameful." The Times also reported that Peter Keisler, former Acting Attorney General during the George W. Bush administration, also signed that letter. And as reported by Main Justice, Holder's predecessor, former Attorney General Michael Mukasey, in an op-ed for The Wall Street Journal slammed the attacks on the DOJ attorneys as "shoddy and dangerous."