'Al-Qaeda 7' smear campaign is an assault on American values/Attacks on Detainee Lawyers Split Conservatives

'Al-Qaeda 7' smear campaign is an assault on American values
By Eugene Robinson
Copyright by The Washington Post
Tuesday, March 9, 2010
http://www.washingtonpost.com/wp-dyn/content/article/2010/03/08/AR2010030803122.html


The word "McCarthyism" is overused, but in this case it's mild. Liz Cheney, the former vice president's ambitious daughter, has in her hand a list of Justice Department lawyers whose "values" she has the gall to question. She ought to spend the time examining her own principles, if she can find them.

A group that Liz Cheney co-chairs, called Keep America Safe, has spent the past two weeks scurrilously attacking the Justice Department officials because they "represented or advocated for terrorist detainees" before joining the administration. In other words, they did what lawyers are supposed to do in this country: ensure that even the most unpopular defendants have adequate legal representation and that the government obeys the law.

Liz Cheney is not ignorant, and neither are the other co-chairs of her group, advocate Debra Burlingame and pundit William Kristol, who writes a monthly column for The Post. Presumably they know that "the American tradition of zealous representation of unpopular clients is at least as old as John Adams' representation of the British soldiers charged in the Boston Massacre" -- in other words, older than the nation itself.

That quote is from a letter by a group of conservative lawyers -- including several former high-ranking officials of the Bush-Cheney administration, legal scholars who have supported draconian detention and interrogation policies, and even Kenneth W. Starr -- that blasts the "shameful series of attacks" in which Liz Cheney has been the principal mouthpiece. Among the signers are Larry Thompson, who was deputy attorney general under John Ashcroft; Peter Keisler, who was acting attorney general for a time during George W. Bush's second term; and Bradford Berenson, who was an associate White House counsel during Bush's first term.

"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," the letter states.

But maligning is apparently the whole point of the exercise. The smear campaign by Cheney, et al., has nothing to do with keeping America safe. It can only be an attempt to inflict political damage on the Obama administration by portraying the Justice Department as somehow "soft" on terrorism. Even by Washington's low standards, this is unbelievably dishonest and dishonorable.

"Whose values do they share?" a video on the group's Web site ominously asks. The answer is obvious: the values enshrined in the U.S. Constitution.

The most prominent of the nine Justice officials, Principal Deputy Solicitor General Neal Katyal, represented Osama bin Laden's driver, Salim Hamdan, in a case that went to the Supreme Court. In a 5-to-3 decision, the court sided with Hamdan and ruled that the Bush administration's military tribunals were unconstitutional. Are Liz Cheney and her pals angry that Katyal was right? Or do they also question the "values" and patriotism of the five justices who voted with the majority?

The letter from the conservative lawyers points out that "in terrorism detentions and trials alike, defense lawyers are playing, and will continue to play, a key role." It notes that whether terrorism suspects are tried in civilian or military courts, they will have access to counsel -- and that Guantanamo inmates, even if they do not face formal charges, have a right to habeas corpus review of their detention. It is the federal courts -- not defense lawyers -- that have made all of this crystal clear. If Cheney and her group object, they should prepare a blanket denunciation of the federal judiciary. Or maybe what they really don't like is that pesky old Constitution, with all its checks, balances and guarantees of due process. How inconvenient to live in a country that respects the rule of law.

But there I go again, taking the whole thing seriously. This is really part of a death-by-a-thousand-cuts strategy to wound President Obama politically. The charge of softness on terrorism -- or terrorist suspects -- is absurd; Obama has brought far more resources and focus to the war against al-Qaeda in Afghanistan than the Bush-Cheney administration cared to summon. Since Obama's opponents can't attack him on substance, they resort to atmospherics. They distort. They insinuate. They sully. They blow smoke.

This time, obviously, they went too far. But the next Big Lie is probably already in the works. Scorched-earth groups like Keep America Safe may just be pretending not to understand our most firmly established and cherished legal principles, but there is one thing they genuinely don't grasp: the concept of shame.

The writer will be online to chat with readers at 1 p.m. Eastern time Tuesday. Submit your questions and comments before or during the discussion.








Attacks on Detainee Lawyers Split Conservatives
By JOHN SCHWARTZ
Copyright by The New York Times
Published: March 9, 2010
http://www.nytimes.com/2010/03/10/us/politics/10lawyers.html?th&emc=th


A conservative advocacy organization in Washington, Keep America Safe, kicked up a storm last week when it released a video that questioned the loyalty of Justice Department lawyers who worked in the past on behalf of detained terrorism suspects.

Kenneth W. Starr, left, and Charles D. Stimson, fellow conservatives, have taken issue with Ms. Cheney’s stance.

But beyond the expected liberal outrage, the tactics of the group, which is run by Liz Cheney, the daughter of the former vice president, have also split the tightly knit world of conservative legal scholars. Many conservatives, including members of the Federalist Society, the quarter-century-old policy group devoted to conservative and libertarian legal ideals, have vehemently criticized Ms. Cheney’s video, and say it violates the American legal principle that even unpopular defendants deserve a lawyer.

“There’s something truly bizarre about this,” said Richard A. Epstein, a University of Chicago law professor and a revered figure among many members of the society. “Liz Cheney is a former student of mine — I don’t know what moves her on this thing,” he said.

On Sunday, the Brookings Institution issued a letter criticizing the “shameful series of attacks” on government lawyers, which it said were “unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications.”

The letter was signed by a Who’s Who of former Republican administration officials and conservative legal figures, including Kenneth W. Starr, the former special prosecutor, and Charles D. Stimson, who resigned from the second Bush administration after suggesting that businesses might think twice before hiring law firms that had represented detainees. Other Bush administration figures who signed include Peter D. Keisler, a former acting attorney general, and Larry D. Thompson, a former deputy attorney general.

The letter cited “the American tradition of zealous representation of unpopular clients,” including the defense by John Adams of British soldiers charged in the Boston Massacre, and noted that some detainee advocates, who worked pro bono, have made arguments that swayed the Supreme Court.

Ms. Cheney’s video referred to the lawyers as the “Al Qaeda Seven,” and accused the Justice Department of concealing their names, which were later revealed by Fox News.

David B. Rivkin Jr., the co-chairman of the Center for Law and Counterterrorism in Washington, is a member of the Federalist Society and signed the Brookings letter; he said the attack was unfortunate.

“I appreciate the partisan advantage to be gained here,” Mr. Rivkin said, but “it’s not the right way to proceed.” He said he preferred “principled ways for debating where this administration is wrong — there’s no reason to resort to ad hominem attacks.”

John C. Yoo, the former Justice official whose memorandums on torture and presidential power were used to justify some of the most controversial policies of the Bush administration, said he had not seen the material from Ms. Cheney’s group. But Professor Yoo, who now teaches at the University of California, Berkeley, and is active in the Federalist Society, said the debate about lawyers who once represented detainees at the American prison in Guantánamo Bay serving in the Justice Department was overheated.

“What’s the big whoop?” he asked. “The Constitution makes the president the chief law enforcement officer. We had an election. President Obama has softer policies on terror than his predecessor.” He said, “He can and should put people into office who share his views.” Once the American people know who the policy makers are, he said, “they can decide whether they agree with him or not.”

Professor Epstein, however, said he found it “appalling” to see people equating work on detainee cases with a dearth of patriotism. He was a co-author of a brief in Hamdan v. Rumsfeld, the Supreme Court case argued by Neal Katyal, now the principal deputy solicitor general and a lawyer under scrutiny from Ms. Cheney’s group. The court ruled that the Bush administration’s initial plans for military commissions to try detainees violated the law.

“You don’t want to give the impression that because you oppose the government on this thing, that means you’re just one of those lefties — which I am not,” he said.

For David M. McIntosh, a former member of Congress and a founder of the Federalist Society, the split among conservatives is not necessarily ideological, but may have to do with experience in the day-to-day world of legal practice. Those in the profession, Mr. McIntosh said, are more likely to argue that a lawyer should not be judged by his clients, though he said it was legitimate to examine the agenda of the lawyers.

“Was the person acting merely as an attorney doing their best to represent a client’s case,” he asked, “or did they seek out the opportunity to represent them or write an amicus brief because they have a political or personal agenda that made them more interested in participating in those cases?” If the commitment to the cases is ideological, he said, it is reasonable to ask, “Is that the best attorney for the Justice Department?”

Matthew Miller, a Justice Department spokesman, said accusations that the administration had been secretive or had dragged its feet in responding to the inquiry were untrue. But Mr. Miller said the department would not participate “in an attempt to drag people’s names through the mud for political purposes.”

In a letter sent to Senator Jeff Sessions, Republican of Alabama, the Justice Department said in February that the lawyers understood that they had to take different positions while working for the United States than they did as private lawyers, and that in any case they would recuse themselves from matters in which they had participated earlier.

A Keep America Safe spokesman responded to a request for comment by passing along links to essays by supporters like Marc A. Thiessen, a columnist for The Washington Post, who wrote on Monday that the detainees did not deserve the same level of representation as criminal defendants.

The lawyers, Mr. Thiessen wrote, “were not doing their constitutional duty to defend unpopular criminal defendants.” He said, “They were using the federal courts as a tool to undermine our military’s ability to keep dangerous enemy combatants off the battlefield in a time of war.”

David Remes, a lawyer who represents 18 detainees, said in a telephone interview from Guantánamo that the deeper point of the attack on the lawyers was political.

The goal, Mr. Remes suggested, “was to make the Obama administration and the Justice Department even more gun-shy than they are on Guantánamo issues.”