What Zero Dark Thirty gets wrong about Guantánamo lawyers

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Defense lawyers are used to being portrayed in the media as morally questionable hired guns, while their police and prosecutorial counterparts play committed heroes who avenge victims and put the bad guys away. Even in the left-leaning HBO series The Wire, which broke the mold of the police procedural, the main defense attorney unscrupulously helps gangsters hide criminal activity, while the head prosecutor is accurately described on Wikipedia as one of the show’s “most morally upright figures.”

Zero Dark Thirty accomplishes something extraordinary in this regard, bringing defense attorneys down even further in a movie that, according to director Kathryn Bigelow, “doesn’t judge.”  Defense lawyers are no longer just shysters, but traitors – moles who would call their closest al-Qaeda associate if a client were asked to assist in a matter of national security.

The inspiration for the CIA official’s claim in the movie is presumably Lynne Stewart, a lawyer convicted in 2005 of illegally passing information (before the September 11th attacks) to militant followers of Sheik Omar Abdel Rahman, a client of hers. Stewart’s case was such a sensation because it was so unusual. Indeed, what makes the CIA official’s claim about Guantánamo lawyers so strange is that it occurs toward the end of the movie – and hence toward the end of the hunt for bin Laden – when detainees had been represented for years by pro bono and human rights lawyers, without any reported security breaches.

The scene shows just how judgmental Bigelow's film is. But whereas on the issue of torture, the film often judges by omission – failing to show, for example, a single member of the intelligence community questioning the value of torture – in this scene the judgment is explicit. CIA operatives are the heroes of the film, and one of them makes an uncontradicted statement about national security. Who would know more about the subject than him?  In the eyes of the audience, then, the statement is probably correct, and Guantánamo lawyers are threats to our national security, Lynne Stewarts in the making.

The film’s view is of a piece with those who view a defense attorney’s job as defending criminals, as opposed to providing all defendants – innocent or guilty – with the representation that they’re guaranteed under the Constitution. To the film, Guantánamo lawyers are defending terrorists – are even complicit in their terrorism. Those lawyers, of course, are simply trying to uphold the Constitution in a place where people have been imprisoned without being charged with – let alone convicted of – anything.  (Guantánamo may be the only place on Earth where lawyers try to have their clients charged with crimes.)

Given that, in cases like Khalid el-Masri’s, the government has abducted, tortured, and imprisoned people who are innocent of any wrongdoing, it’s probably a good thing that there are lawyers watching out for Guantánamo detainees. Zero Dark Thirty, however, adopts the view of almost every police procedural:  the defense attorney as an impediment to justice.

Perhaps some CIA officials felt that Guantánamo advocates were treasonous and in touch with al-Qaeda – never mind that the advocates have included such luminaries as Neal Katyal, the Acting Solicitor General. I personally have trouble believing that such a sophisticated bunch felt that way in 2011, after so many years of representation without a security breach.

Perhaps I’m wrong, though. Perhaps the national security apparatus did, by and large, have that low an opinion of Guantánamo attorneys. After all, they’re just another kind of defense lawyer.

Sharma is a public defender in New York City.