A Cheap Shot

An advertisement by a group calling itself Keep America Safe has caused an uproar in the close knit ranks of the conservative legal community in the United States. Keep America Safe was started by Elizabeth Cheney, daughter of former Vice-President Dick Cheney, and commentator William Kristol. The ad takes aim at lawyers in the Obama administration Justice Department and calls their patriotism into question for legal work done on behalf of Guantanamo Bay detainees before their government service. The lawyers are referred to in the ad as “The Al Qaeda 7.”

To their great credit, a number of legal scholars and former government officials have come forward to protest these outrageous accusations. In a statement published on March 8, 2010, the authors write:

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 honourable 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 honourable 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.

This important statement was signed by, among others, former senior officials in the Bush administration as well as Kenneth Starr, prosecutor in the Monica Lewinsky scandal involving Bill Clinton. Writing in the March 10, 2010 edition of the Wall Street Journal, former Bush Attorney General Michael Mukasey also joined the call:

It is plainly prudent for us to assure that no government lawyers are bringing to their public jobs any agenda driven by views other than those that would permit full-hearted enforcement of laws that fall within their responsibility – whether those laws involve prosecution of drug dealers, imposition of the death penalty, or detention of those who seek to wage holy war against the United States. It’s also prudent that Congress exercise its long-established oversight responsibility to provide that assurance.

But that prudence is not properly exercised by arguing that lawyers who defended drug cases, or worked on defense teams in death-penalty cases, or helped bring legal proceedings in behalf of those detained as terrorists, are automatically to be identified with their former clients and regarded as a fifth column within the Justice Department. The rules of conduct of the District of Columbia bar, for example, direct that representation of a client not be portrayed as endorsement of the client’s views or behavior.

If the Department of Justice comes to attract only lawyers who have spent their professional energy principally in avoiding matters of controversy, the quality of lawyers willing to serve at the department will decline, and the department will suffer, as will we all.