An increasing number of conservatives are criticizing the group, Keep America Safe, for its shameful ad on the “Al Qaeda 7” — political appointees in the Justice Department who represented detainees prior to their appointment. Benjamin Wittes has also drafted a statement decrying the attacks signed by several prominent conservative attorneys, including Peter Keisler, David Rivkin, and John Bellinger. Particularly notable is that some of the signatories have staunchly defended the detention of allegted enemy combatants at Guantanamo, but nonetheless think the attacks on the “Al Qaeda 7” cross the line. This dispute is reminiscent of the furor over a Bush Administration official’s criticism of attorneys representing detainees during the Bush Administration.
The statement, as published by Politico, is below the jump.
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’ 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.
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UPDATE: The original signatories, as reported in Politco, were Benjamin Wittes, Robert Chesney, Matthew Waxman, David Rivkin, Philip Bobbitt, and Peter Keisler. A second Politico story, also includes the following signatories: Lee Casey, Bradford Berenson, Kenneth Anderson, John Bellinger III, Philip Zelikow, Kenneth W. Starr, Larry Thompson, Charles “Cully” D. Stimson, Chuck Rosenberg, Harvey Rishikoff, Orin Kerr, and Daniel Dell’Orto.