Demagogues on the right are smearing loyal Americans as disloyal and charging that the government is being undermined from within," thumped the New York Times in a March editorial:
These voices -- often heard on Fox News -- are going after Justice Department lawyers who represented Guantánamo detainees when they were in private practice. It is not nearly enough to say that these lawyers did nothing wrong. In fact, they upheld the highest standards of their profession and advanced the cause of democratic justice. The Justice Department is right to stand up to this ugly bullying.
The controversy began when Sen. Charles Grassley, an Iowa Republican, asked Attorney General Eric Holder for information about Justice Department lawyers who previously represented terrorist detainees. Holder responded that the department employed nine such attorneys, but he named only two: Deputy Solicitor General Neal Katyal, who successfully argued the 2006 Supreme Court case Hamdan v. Rumsfeld, and Jennifer Daskal, who formerly worked for Human Rights Watch.
A group called Keep America Safe, led by Liz Cheney, daughter of the former vice president, produced what Newsweek described as "an unusually ferocious Web ad" demanding to know, "Who are the al Qaeda Seven?" and "Whose values do they share?" Soon enough, the former question was answered. The Justice Department confirmed the names of the remaining lawyers when, as the Times editorial rather dismissively put it, Fox News Channel "figured out who they were" -- or, in other words, when the network committed journalism.
The Times likened criticism of the erstwhile detainee lawyers to McCarthyism; its editorial carried the headline "Are You or Have You Ever Been a Lawyer?" But the Keep America Safe ad also drew reproof, albeit of a more measured nature, from conservatives. Ted Olson, who was George W. Bush's solicitor general when his wife, Barbara, was killed in the 9/11 attack on the Pentagon, said that he had the "greatest respect" for lawyers who represented detainees, and that they had acted "consistent with the finest traditions of the legal profession."
The Brookings Institution released a letter signed by nearly two dozen lawyers, whom Newsweek called "a virtual ‘who's who' of officials who worked on counterterrorism policies under President Bush." It argued:
The American tradition of zealous representation of unpopular clients is at least as old as John Adams's 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.
Signatories included Charles "Cully" Stimson, formerly deputy assistant secretary of defense for detainee affairs, who in 2006 had urged a boycott of law firms that represented terrorists. Although Stimson described himself as "disgusted" by the Keep America Safe ad, the Times never forgave him for what it saw as his earlier transgression, taking a swipe at him in its editorial years later.
The Wall Street Journal weighed in too, with an editorial that partially defended the lawyers:
Some detainee lawyers, including Mr. Katyal, were successful in arguing their cases before the Supreme Court. We think the holding in Hamdan did harm both to executive power and U.S. security, but it's strange to suggest that a successful pleading before the High Court raises questions about a lawyer's loyalty to America.
In defense of the ad, Marc Thiessen, a former Bush speechwriter, noted in his online column for the Washington Post that Daskal "has written that any terrorist not charged with a crime ‘should be released from Guantanamo's system of indefinite detention' even though ‘at least some of these men may...join the battlefield to fight U.S. soldiers and our allies another day.'" She made this argument in a 2008 Human Rights Watch report -- "which is to say," the Journal pointed out, "that she was representing not a client but her own opinion. The Administration is entitled to employ people who hold such views, but it has no right to do so in secret."
Therein lies the sensible middle ground on the detainee-lawyer question. Having represented enemy combatants while in private practice should not disqualify a lawyer from working for the Justice Department, any more than a criminal defense lawyer should be barred from working as a prosecutor. The rhetoric of the Keep America Safe ad -- labeling the lawyers the "al Qaeda Seven" and implying that they "shared" the "values" of terrorists -- was ugly and unwarranted.
But the call for transparency is entirely defensible. The ad would have been unobjectionable -- though, to be sure, it would have gone unnoticed -- had it simply called for disclosure of the lawyers' names, the work they had done, their views on detainee policy, and their roles at the Justice Department. All of this, as even the New York Times should know, falls under the rubric of the public's right to know.
One must also note that many of the lawyers' defenders on the left are guilty of rank hypocrisy. The Times argued in its editorial that lawyers who "take on controversial cases" should not be "demonized with impunity." No one can reasonably disagree. But the paper has a record of engaging in just such demonization.
In a May 2009 editorial, the Times endorsed a politically motivated witch hunt against three former Bush administration lawyers who, while at the Justice Department, wrote memos setting forth limits on the interrogation of terrorists -- limits that, in the Times's opinion, were insufficiently gentle:
Their acts were a grotesque abrogation of duty and breach of faith: as government officials sworn to protect the Constitution; as lawyers bound to render competent and honest legal opinions; and as citizens who played a major role in events that disgraced this country.
Those "acts," again, consisted only in doing their jobs as lawyers. And not only did the Times demonize John Yoo, Jay Bybee, and Steven Bradbury; it called for their disbarment and for Bybee's impeachment (he is now a judge on the Ninth U.S. Circuit Court of Appeals). Given that these lawyers were employed to defend America, perhaps it isn't out of bounds to ask whose values the Times's editorialists share.
One recent evening, I went to a Federalist Society event in New York to hear Yoo speak about his new book, Crisis and Command: A History of Executive Power from George Washington to George W. Bush. He was repeatedly interrupted by Code Pink wackos shouting hateful slogans.
Yoo, who routinely faces such harassment from people who share the values of the New York Times, was good-natured about it. Still, this was "ugly bullying" of a much more obtrusive sort than a congressional query, a journalistic investigation, or even a harsh advertisement.