Benjamin Wittes Comments on His AQ7 Letter at The New Republic

The excitement over the AQ7 ad put out by Liz Cheney’s organization has died down, but Ben Wittes has this very interesting piece up in The New Republic extending discussion of the letter that he drafted, signed by a group of conservative and centrist folks criticizing it.  I was one of the signers, and wound up sticking up my own very lengthy comment about it here at Volokh.

I suppose the key point for Ben and me, in somewhat different ways, is that we have each received much praise from folks on the left for defending Obama lawyers such as Neal Katyal or Jen Daskal.  No one objects to praise, or at least I don’t, but much of it was a little misplaced.  The praise tended to be as though, in order to defend the Obama lawyers, we had somehow changed our minds about the Bush lawyers.  Whereas, for Ben and for me, each in somewhat different ways, the issue was the same.  We defended Katyal and Daskal because we had defended the Bush lawyers and thought the same principle applied.  I also followed up with an response to conservatives such as Andy McCarthy who attacked the Wittes letter.  What with health care reform, and lots of other things on the agenda, the discussion is moving on, but it has been an important one, and at least among conservatives, a clarifying one.

From the opening of Ben Wittes’s essay:

The attacks on the Justice Department lawyers who had represented Guantanamo detainees angered me for several distinct reasons. They typified a growing culture of incivility in the politics of national security and law that I have always loathed and have spoken against repeatedly. They sought to delegitimize the legal defense of politically unpopular clients and to impose a kind of ideological litmus test on Justice Department service. They were also, at least in part, about friends and professional acquaintances. And they reminded me painfully of other friends during the Bush administration who had been similarly slimed and for whom the bar had failed to stand up.

The criticism had been simmering for some time in newspaper columns and editorials, but it exploded in the public arena with the now-infamous web ad by a group called Keep America Safe. The video, ostensibly about the Justice Department’s unwillingness to release the names of all of the lawyers who had worked on Gitmo, brands the unknown ones as the “Al Qaeda 7” and wonders “Why the secrecy” behind them? “Whose values do they share?” The two lawyers whose identities were already public—Principal Deputy Solicitor General Neal Katyal and an official in the department’s National Security Division named Jennifer Daskal—saw individual articles blasting them. Citing their service, The New York Post asked in a January editorial, “Whose side is the Justice Department on: America’s—or the terrorists’?” When the latest video appeared, I typed out a simple statement and began circulating it among colleagues for signatures.

I am a peculiar choice to organize what The New York Times later called “a Who’s Who of former Republican administration officials and conservative legal figures”—not being a former GOP official, a conservative, or even a lawyer. I occupy a strange place in the current debate over law and terror, sympathetic to important arguments made by both right and left. I have fiercely criticized both the Bush administration’s counterterrorism policies and the Obama administration’s—and fiercely defended both as well.

Yet as the attacks mounted, I wondered whether centrist and conservative lawyers, some of whom had suffered similar attacks themselves, would take a strong stand in defense of the Obama Justice Department lawyers. The answer, it turns out, was as encouraging as the attacks themselves were dispiriting. These lawyers responded with an outpouring of enthusiasm, resulting in a powerful rebuke to the political operatives who had launched the attacks.

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