[Congressional Record Volume 156, Number 34 (Wednesday, March 10, 2010)]
[Senate]
[Pages S1353-S1355]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SMEARING OF JUSTICE DEPARTMENT ATTORNEYS
Mr. LEAHY. Mr. President, it saddens and concerns me that another
line has been crossed, moving us further toward partisan excess and
incivility. I refer to the calculated, political campaign-style attacks
on the loyalty and patriotism of honorable Department of Justice
attorneys over the past few weeks.
Self-restraint is a crucial but often neglected value in our
democracy. Just because a political attack that can put ``points'' on
the board is possible, does not make it right. Misleading appeals to
fear, like this one, are corrosive to our system and to the rule of
law.
Just as President Lincoln said of leadership generally, we must
appeal to our better angels, not to fear and suspicion. Those who have
megaphones
[[Page S1354]]
made possible by millions of dollars, and who use them to shape public
opinion, must lead responsibly and constructively.
Walter Dellinger, a distinguished attorney with a long record of
public service, tells from personal experience the story of one
attorney who is being smeared in these attacks. The glimpse he offers
into this issue is so clear and compelling that I will have printed in
the Record the full text of his piece, which appeared in the Washington
Post on March 5.
This attack is not about transparency, nor about some purported
conflict of interest. The Department of Justice set that canard to rest
with its February 18 letter. This is about a partisan and personal
attack. Many of the forces that have been defending John Yoo and other
Bush-Cheney administration lawyers are the very ones seeking to smear
these Justice Department attorneys. It is shameful. These American
lawyers did what they are supposed to do, and what American lawyers
have always done--provide legal counsel no matter what the charge or
how unpopular the person. That is what John Adams did when he defended
the British. This dedication deserves thanks, not reproach. The
military and civilian lawyers who have previously accepted the
difficult task of providing representation to individuals who have been
detained by the United States in terrorism cases did no wrong and do
not deserve this. Ted Olsen and Ken Starr, lawyers from the Reagan and
Bush administrations, know that and agree. It is saddening and wrong
that shallow partisan operatives would sink so low.
I ask unanimous consent that copies of the Justice Department letter
and articles and editorials be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Washington Post, Mar. 9, 2010]
`Al-Qaeda 7' Smear Campaign Is an Assault on American Values
(By Eugene Robinson)
The word ``McCarthyism'' is overused, but in this case it's
mild. Liz Cheney, the former vice president's ambitious
daughter, has in her hand a list of Justice Department
lawyers whose ``values'' she has the gall to question. She
ought to spend the time examining her own principles, if she
can find them.
A group that Liz Cheney co-chairs, called Keep America
Safe, has spent the past two weeks scurrilously attacking the
Justice Department officials because they ``represented or
advocated for terrorist detainees'' before joining the
administration. In other words, they did what lawyers are
supposed to do in this country: ensure that even the most
unpopular defendants have adequate legal representation and
that the government obeys the law.
Liz Cheney is not ignorant, and neither are the other co-
chairs of her group, advocate Debra Burlingame and pundit
William Kristol, who writes a monthly column for The Post.
Presumably they know that ``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''--in other words, older than the nation
itself.
That quote is from a letter by a group of conservative
lawyers--including several former high-ranking officials of
the Bush-Cheney administration, legal scholars who have
supported draconian detention and interrogation policies, and
even Kenneth W. Starr--that blasts the ``shameful series of
attacks'' in which Liz Cheney has been the principal
mouthpiece. Among the signers are Larry Thompson, who was
deputy attorney general under John Ashcroft; Peter Keisler,
who was acting attorney general for a time during George W.
Bush's second term; and Bradford Berenson, who was an
associate White House counsel during Bush's first term.
``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,'' the letter states.
But maligning is apparently the whole point of the
exercise. The smear campaign by Cheney, et al., has nothing
to do with keeping America safe. It can only be an attempt to
inflict political damage on the Obama administration by
portraying the Justice Department as somehow ``soft'' on
terrorism. Even by Washington's low standards, this is
unbelievably dishonest and dishonorable.
``Whose values do they share?'' a video on the group's Web
site ominously asks. The answer is obvious: the values
enshrined in the U.S. Constitution.
The most prominent of the nine Justice officials, Principal
Deputy Solicitor General Neal Katyal, represented Osama bin
Laden's driver, Salim Hamdan, in a case that went to the
Supreme Court. In a 5-to-3 decision, the court sided with
Hamdan and ruled that the Bush administration's military
tribunals were unconstitutional. Are Liz Cheney and her pals
angry that Katyal was right? Or do they also question the
``values'' and patriotism of the five justices who voted with
the majority?
The letter from the conservative lawyers points out that
``in terrorism detentions and trials alike, defense lawyers
are playing, and will continue to play, a key role.'' It
notes that whether terrorism suspects are tried in civilian
or military courts, they will have access to counsel--and
that Guantanamo inmates, even if they do not face formal
charges, have a right to habeas corpus review of their
detention. It is the federal courts--not defense lawyers--
that have made all of this crystal clear. If Cheney and her
group object, they should prepare a blanket denunciation of
the federal judiciary. Or maybe what they really don't like
is that pesky old Constitution, with all its checks, balances
and guarantees of due process. How inconvenient to live in a
country that respects the rule of law.
But there I go again, taking the whole thing seriously.
This is really part of a death-by-a-thousand-cuts strategy to
wound President Obama politically. The charge of softness on
terrorism--or terrorist suspects--is absurd; Obama has
brought far more resources and focus to the war against al-
Qaeda in Afghanistan than the Bush-Cheney administration
cared to summon. Since Obama's opponents can't attack him on
substance, they resort to atmospherics. They distort. They
insinuate. They sully. They blow smoke.
This time, obviously, they went too far. But the next Big
Lie is probably already in the works. Scorched-earth groups
like Keep America Safe may just be pretending not to
understand our most firmly established and cherished legal
principles, but there is one thing they genuinely don't
grasp: the concept of shame.
____
[From the New York Times, Mar. 7, 2010]
Are You or Have You Ever Been a Lawyer?
In the McCarthy era, demagogues on the right smeared loyal
Americans as disloyal and charged that the government was
being undermined from within.
In this era, demagogues on the right are smearing loyal
Americans as disloyal and charging that the government is
being undermined from within.
These voices--often heard on Fox News--are going after
Justice Department lawyers who represented Guantanamo
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.
Senator Charles Grassley, Republican of Iowa, has been
pressing Attorney General Eric Holder Jr. since November to
reveal the names of lawyers on his staff who have done legal
work for Guantanamo detainees. The Justice Department said
last month that there were nine political appointees who had
represented the detainees in challenges to their confinement.
The department said that they were following all of the
relevant conflict-of-interest rules. It later confirmed their
names when Fox News figured out who they were.
It did not take long for the lawyers to become a
conservative target, branded the ``Gitmo 9'' by a group
called Keep America Safe, run by Liz Cheney, daughter of
former Vice President Dick Cheney, and William Kristol, a
conservative activist (who wrote a Times Op-Ed column in
2008). The group released a video that asks, in sinister
tones, ``Whose values do they share?''
On Fox News, Ms. Cheney lashed out at lawyers who
``voluntarily represented terrorists.'' She said it was
important to look at who these terrorists are, including
Salim Ahmed Hamdan, who had served as Osama bin Laden's
driver. Let's do that.
Mr. Hamdan was the subject of a legal battle that went all
the way to the Supreme Court. Ms. Cheney conveniently omitted
that the court ruled in favor of his claim that the military
commissions system being used to try detainees like him was
illegal. Republican senators then sponsored legislation to
fix the tribunals. They did not do the job well, but the
issue might never have arisen without the lawyers who argued
on behalf of Mr. Hamdan, some of whom wore military uniforms.
In order to attack the government lawyers, Ms. Cheney and
other critics have to twist the role of lawyers in the
justice system. In representing Guantanamo detainees, they
were in no way advocating for terrorism. They were ensuring
that deeply disliked individuals were able to make their case
in court, even ones charged with heinous acts--and that the
Constitution was defended.
It is not the first time that the right has tried to
distract Americans from the real issues surrounding detention
policy by attacking lawyers. Charles Stimson, the deputy
assistant secretary of defense for detainee affairs under
George W. Bush, urged corporations not to do business with
leading law firms that were defending Guantanamo detainees.
He resigned soon after that.
If lawyers who take on controversial causes are demonized
with impunity, it will be difficult for unpopular people to
get legal representation--and constitutional rights that
protect all Americans will be weakened. That is a high price
to pay for scoring cheap political points.
[[Page S1355]]
____
[From the Washington Post, Mar. 5, 2010]
A Shameful Attack on the U.S. Legal System
(By Walter Dellinger)
It never occurred to me on the day that Defense Department
lawyer Rebecca Snyder and Lt. Cmdr. William Kuebler of the
Navy appeared in my law firm's offices to ask for our
assistance in carrying out their duties as military defense
lawyers that the young lawyer who worked with me on that
matter would be publicly attacked for having done so. And yet
this week that lawyer and eight other Justice Department
attorneys have been attacked in a video released by a group
called Keep America Safe (whose board members include William
Kristol and Elizabeth Cheney) for having provided legal
assistance to detainees before joining the department. The
video questions their loyalty to the United States, asking:
``DOJ: Department of Jihad?'' and ``Who are these government
officials? . . . Whose values do they share?''
Here, in brief, is the story of one of those lawyers.
In June 2007, I was at a federal judicial conference when I
received an urgent message to call the Defense Department.
The caller was Lt. Cmdr. Kuebler, a uniformed Navy officer
who had been detailed to the Office of Military Commissions.
As part of his military duties, Kuebler had been assigned to
represent Omar Khadr, a Guantanamo detainee who was to be
tried before a military commission. Kuebler told me that the
U.S. Supreme Court had agreed that day to review the case of
another detainee who had been a part of the same lower court
proceeding as Khadr. Because Kuebler's client had not sought
review at the Supreme Court, this situation raised some
complex questions of court practice with which Kuebler was
unfamiliar. Kuebler's military superior suggested he call me
and ask whether I could assist him in analyzing the
applicable Supreme Court rule.
It was a Friday night. I called Karl Thompson, a lawyer at
my firm who had previously been a Supreme Court law clerk,
and asked whether he could look into the question over the
weekend. I told Thompson that the military lawyers assigned
to these cases had a very burdensome workload and that it
seemed that Kuebler could really use our help. Even though
Thompson was extremely busy with other work at the firm, he
said he would somehow find time for this as well.
Over the next several months, Thompson (in addition to his
other firm work) provided assistance to Kuebler and his
Defense Department colleague in their briefing before the
Supreme Court and, in Khadr's case, the lower courts. Khadr's
case raises important questions, including the legal status
of juvenile detainees (he was 15 years old at the time of
capture). In 2009, Thompson left our firm to join the Office
of Legal Counsel at the Justice Department.
Thompson's assistance to the military officers who had been
assigned to Khadr's case seemed to me to be not only part of
a lawyer's professional obligation but a small act of
patriotism as well. The other Justice Department lawyers
named in this week's attack came to provide assistance to
detainees in a number of ways, but they all deserve our
respect and gratitude for fulfilling the professional
obligations of lawyers. This sentiment is widely shared
across party and ideological lines by leaders of the bar. As
former Solicitor General Ted Olson wrote in response to
previous attacks on detainee lawyers, ``The ethos of the bar
is built on the idea that lawyers will represent both the
popular and the unpopular, so that everyone has access to
justice. Despite the horrible Sept. 11, 2001, attacks, this
is still proudly held as a basic tenet of our profession.''
That those in question would have their patriotism, loyalty
and values attacked by reputable public figures such as
Elizabeth Cheney and journalists such as Kristol is as
depressing a public episode as I have witnessed in many
years. What has become of our civic life in America? The only
word that can do justice to the personal attacks on these
fine lawyers--and on the integrity of our legal system--is
shameful. Shameful.
____________________