Senate Republicans have demanded details of the lawyers' past work and Liz Cheney’s group “Keep America Safe” has questioned their “values." A drumbeat of Republican criticism forced the Justice Department reluctantly to identify seven of them last week. But the harshness of the criticism – Keep America Safe labeled a group of them the “Al Qaeda Seven” — has provoked a backlash from across the legal establishment.
“We consider these attacks both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications,” wrote the 19 lawyers whose names were attached to the statement as of early Monday.
The statement cited John Adams’s defense of British soldiers charged in the Boston Massacre to argue that “zealous representation of unpopular clients” is an important American tradition.
The attacks on the lawyers “undermine the Justice system more broadly,” they wrote, by “delegitimizing” any system in which accused terrorists have lawyers, whether civilian courts of military tribunals.
The letter’s signers include some of the top officials of a Bush Justice Department that wrestled at length with the legal questions surrounding terrorist detentions.
The Bush officials clashed repeatedly with some of the detainee lawyers, such as the current deputy Solicitor General, Neal Katyal, whom they are now defending. The signers include former Deputy Attorney General Larry Thompson, John Ashcroft’s No. 2, and Peter Keisler, who served as acting attorney general during President Bush’s second term. They also include several lawyers who dealt directly with detainee policy: Matthew Waxman and Charles “Cully” Stimson, who each served as deputy assistant secretary of defense for detainee affairs; Daniel Dell’Orto, who was acting general counsel for the Department of Defense; and Bradford Berenson, a prominent Washington lawyer who worked on the issues as an associate White House counsel during President Bush’s first term.
In 2007, Stimson resigned as the Bush administration’s top detainee affairs official after suggesting on a radio show that companies not hire law firms providing pro bono services to detainees. He later apologized.
The lawyers’ sharp criticism of the Democratic appointees reflects, in part, a rift that deepened late in President George W. Bush’s term, in which allies of Vice President Dick Cheney fought pitched battles over the treatment of detainees with lawyers throughout the government seeking to bring terror suspects into a more familiar legal framework.
The letter’s other signatories include Philip Zelikow and John Bellinger III, who were top advisers to then-Secretary of State Condoleezza Rice, .
Also signing were David Rivkin and Lee Casey, officials in the Justice Department in the first George W. Bush administration. Rivkin and Casey ‘s participation underscores the depth of discomfort with the attacks, as they have been among the most vocal defenders of Bush Administration detainee practices. Last April, for example, they wrote in the Wall Street Journal that the controversial Department of Justice memos widely viewed as justifying harsh treatment in fact “detail the actual techniques used and many measures taken to ensure that interrogations did not cause severe pain or degradation.”
Separately, former Bush administration Solicitor General Ted Olson rose to the defense of lawyers representing detainees. He noted, however, that some of those now defending current Justice Department lawyers were “completely silent” in the face of “vicious attacks” on Bush administration lawyers handling terrorism issues.
“I of course think it’s entirely appropriate for members of the legal profession to have provided legal services to detainees,” Olson told POLITICO. “It is a part of the responsibility of lawyers and in the finest tradition of the profession to represent unpopular persons who are caught up in the criminal justice system or even in the military justice system. I think that people who do so, do so honorably,” said Olson, whose arguments before the Supreme Court helped win the presidency for George W. Bush in 2000.
“But I also think that some of the people being highly critical now of the criticism of the lawyers in the Justice Department, have been completely silent when it came to attacks — vicious attacks — on lawyers in the Department of Justice and the Defense Department who were providing legal assistance and advice to the United States of America during the last administration in connection with the attacks on the United States by terrorists.
“So lawyers should be encouraged to provide legal advice conscientiously to their clients. And that goes for people in the Bush administration and the Obama administration.”
In 2007, Olson co-authored an article in Legal Times in 2007 expressing similar sentiments about representation of detainees. His co-author was Neal Katyal, one of the current Justice Department lawyers attacked by Cheney.
Liz Cheney’s partner in Keep America Safe, Weekly Standard Editor Bill Kristol, wrote Sunday to dispute the notion that his group’s sharp-edged ad constituted an “attack” on the lawyers. His aim, he wrote, was to push for Justice to release their names and to raise “the question of whether former pro bono lawyers for terrorists should be working on detainee policy for the Justice Department.”
Other critics have compared the Justice Department appointees to mob lawyers, and argued that while they have a right to defend their clients, they don’t belong in government.
Keep America Safe is not alone in raising the issue. And Republican leaders on Capitol Hill believe the attacks are politically effective, exposing what they see as concern for the rights of alleged terrorists outweighing the security of Americans. A senior Republican congressional aide said that the line of attack is likely to broaden as the midterm elections approach. Sen. Charles Grassley (R-Ipwa) has taken the lead in pressing the Justice Department first to reveal the number of its appointees who represented or advocated for detainees and then to confirm their names to Fox News.
Fox reported that most of the nine were big-firm lawyers who “played only minor or short-lived roles in advocating for detainees,” a popular pro bono cause at more than half of the country’s large law firms. A few were more prominent. Assistant Attorney General Tony West of the Justice Department’s Civil Division represented John Walker Lindh, the young California man captured among the Taliban early in the war in Afghanistan. Jennifer Daskal, another political appointee at Justice, worked on detainee issues at Human Rights Watch, opposing the Bush Administration’s policies. But the highest profile attorney among the group is Katyal, who represented Salim Hamdan, Osama bin Laden’s driver, in the case in which the Supreme Court declared President Bush’s military tribunals unconstitutional.
“The fact that he got 5 votes on the Supreme Court has to count for something,” said Benjamin Wittes, a senior fellow at the Brookings Institution, who drafted the letter.
“There has to be some space to disagree without someone running an ad suggesting you’re an Al Qaeda agent,” he said.
Here is the full statement and signatories as of early Monday:
The past several days have seen a shameful series of attacks on attorneys in the Department of Justice who, in previous legal practice, either represented Guantanamo detainees or advocated for changes to detention policy. As attorneys, former officials and policy specialists who have worked on detention issues, we consider these attacks both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications.
The past several days have seen a shameful series of attacks on attorneys in the Department of Justice who, in previous legal practice, either represented Guantanamo detainees or advocated for changes to detention policy. As attorneys, former officials and policy specialists who have worked on detention issues, we consider these attacks both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications. The past several days have seen a shameful series of attacks on attorneys in the Department of Justice who, in previous legal practice, either represented Guantanamo detainees or advocated for changes to detention policy. As attorneys, former officials, and policy specialists who have worked on detention issues, we consider these attacks both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications.
The American tradition of zealous representation of unpopular clients is at least as old as John Adams’s representation of the British soldiers charged in the Boston massacre. People come to serve in the Justice Department with a diverse array of prior private clients; that is one of the department’s strengths. The War on Terror raised any number of novel legal questions, which collectively created a significant role in judicial, executive and legislative forums alike for honorable advocacy on behalf of detainees. In several key cases, detainee advocates prevailed before the Supreme Court. To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit.
Such attacks also undermine the Justice system more broadly. In terrorism detentions and trials alike, defense lawyers are playing, and will continue to play, a key role. Whether one believes in trial by military commission or in federal court, detainees will have access to counsel. Guantanamo detainees likewise have access to lawyers for purposes of habeas review, and the reach of that habeas corpus could eventually extend beyond this population. Good defense counsel is thus key to ensuring that military commissions, federal juries, and federal judges have access to the best arguments and most rigorous factual presentations before making crucial decisions that affect both national security and paramount liberty interests. To delegitimize the role detainee counsel play is to demand adjudications and policymaking stripped of a full record. Whatever systems America develops to handle difficult detention questions will rely, at least some of the time, on an aggressive defense bar; those who take up that function do a service to the system.
John Bellinger III
Kenneth W. Starr
Charles "Cully" D. Stimson