For several weeks, Republican lawmakers and a conservative group have been attacking the Justice Department for refusing to reveal the names of nine officials who have in some way advocated for or represented detainees at Guantanamo Bay.
"The administration has made many highly questionable decisions when it comes to national security, " Sen. Chuck Grassley, R-Iowa, said in a recent statement, arguing that the public has “a right to know who advises the Attorney General and the President on these critical matters."
Attorney General Eric Holder identified two of the attorneys in question: Principal Deputy Solicitor General Neal Katyal and National Security Division Attorney Jennifer Daskal. Katyal won the Supreme Court case Hamdan v. Rumsfeld, challenging the legality of President Bush’s military commissions; Dascal worked for Human Rights Watch.
Who were the other seven? Holder refused to say.
This week Holder was attacked for that by the group Keep America Safe, run by former State Department official and vice presidential daughter Liz Cheney, Weekly Standard editor Bill Kristol and Debra Burlingame, the sister of Charles F. “Chic” Burlingame, III, pilot of American Airlines flight 77, which crashed into the Pentagon on September 11, 2001.
The attack came in the form of this ad, which features Holder saying “the pendulum is starting to swing” and “we’re going to be looking for people who share our values.”
The narrator asks, “So who did President Obama’s Attorney General Eric Holder hire?”
An Investor’s Business Daily headline is shown, reading “DOJ: Department of Jihad.”
“Nine lawyers who represented or advocated for terrorist detainees,” the narrator says, citing this ABC News story by ABC News Congressional Correspondent Jonathan Karl, which describes GOP lawmakers asking which Justice Department officials have been involved in the past with defending detainees.
“Who are these government officials? Eric Holder will only name two,” the narrator says. “Why the secrecy behind the other seven? Whose values do they share?” the narrator asks as the image of a terrorist is shown.
“Tell Eric Holder Americans have a right to know the identity of the al Qaeda Seven,” the narrator concludes.
It does not appear that any of these conservatives and Republicans stated any objections to the Bush Justice Department’s hiring of Trisha Anderson, who represented 13 Yemeni detainees at Covington & Burling; or Varda Hussain, who at Venable represented three Egyptian detainees.
Justice Department spokesman Matthew Miller said today that Justice Department officials “will not participate in an attempt to drag people’s names through the mud for political purposes. “
Miller said that one of the hallmarks of “our nation’s legal system is that attorneys provide faithful representation to all sorts of clients. As John Roberts said at his confirmation hearings, it is wrong to identify lawyers with the client or the views the lawyer advances for the client, and our history is replete with such examples, from John Adams representing British soldiers to Department of Defense JAG lawyers representing Guantanamo detainees.”
The DOJ spokesman called it “offensive” that the patriotism of Justice Department lawyers is being questioned, “just as it was offensive when people questioned the patriotism of JAG lawyers representing detainees or the Supreme Court Justices who, by majority votes, ruled in favor of detainees in cases during the previous administration.”
Writing to Sen. Jeff Sessions, R-Ala.., Holder wrote that “all Department appointees understand that their client is the United States” and no appointee “would permit or has permitted any prior affiliation to interfere with the vital task of protecting national security, and any suggestion to the contrary is absolutely false.”
Those senior Department officials who advocated in any way for detainees, “like other political
appointees who are similarly situated, have recused from particular matters regarding specific
Holder said that “as best as we can determine, of the 50 largest U.S. law firms, at least 34 have either represented detainees or filed amicus briefs in support of detainees.” Talking Points Memo noted today that Carol Elder Bruce has been listed as counsel in two habeas cases for detainees, El Mashad et al v Bush and Alladeen et all v Bush. Bruce is a top attorney with Bracewell Giuliani, the firm partly run by former New York City Mayor and GOP presidential candidate Rudy Giuliani.
The Attorney General did not provide the names beyond Katyal and Daskal.
Fox News’s Mike Levine today identified the other seven, which the Justice Department confirmed:
1. Deputy Assistant Attorney General in the Justice Department's Civil Division Beth Brinkmann who as an attorney with Morrison & Foerster worked on a Supreme Court brief on behalf of former federal judges that called for further protection of detainees' rights;
2. Office of Legal Counsel attorney Jonathan Cedarbaum who as an attorney at WimlerHale was part of a "firm-wide effort" representing six Bosnian-Algerian detainees that led to the Supreme Court case Boumediene v. Bush. (A former assistant to the Solicitor General in the Bush administration, Pratik Shah, was also on the WilmerHale Boumediene v. Bush legal team);
3. Senior Counsel in the Office of the Deputy Attorney General Eric Columbus, a former WilmerHale attorney who also was on that Boumediene v. Bush legal team;
4. Office of the Attorney General official Tali Farhadian who as an attorney with Debevoise & Plimpton helped file a brief urging an appeals court to hear the case of Ali al-Marri;
5. Principal Deputy Associate Attorney General Joseph Guerra who as an attorney with Sidley Austin helped three civil liberties groups, including a conservative organization, file a brief urging the Supreme Court to hear the case of Jose Padilla;
6. Office of Legal Counsel official Karl Thompson, who as an attorney at O'Melveny & Myers was on a team of seven attorneys representing Omar Khadr;
7. Assistant Attorney General for the Justice Department's Civil Division Tony West who as an attorney with Morrison & Foerster's represented John Walker Lindh.
In an interview with the Washington Independent’s Spencer Ackerman the chief prosecutor for the erstwhile military commissions in the Bush administration, Air Force Col. Morris Davis, (Ret.), called the attacks against these attorneys “outrageous.”
“Neal in particular was and is one of the sharpest and hardest-working attorneys I’ve known in the 27 years I’ve been practicing law,” Davis told the Independent. “It is absolutely outrageous for the Cheney-Grassley crowd to try to tar and feather Neal and Jennifer and insinuate they are al-Qaeda supporters. You don’t hear anyone refer to John Adams as a turncoat for representing the Brits in the Boston Massacre trial. If you zealously represent a client, there’s nothing shameful about that. That’s the American way.”
A counterargument is made by Byron York, chief political correspondent for the Washington Examiner, who wrote that “Private lawyers can choose to take or not take cases. Sometimes they make their decisions based on money, sometimes on principle, sometimes because they are sympathetic to the accused. The lawyers who worked with the terrorist detainees chose to represent people who are making war on the United States. That's certainly their right, but it's entirely reasonable to ask whether they should now be working on detainee issues at the Justice Department.”