[Congressional Record (Bound Edition), Volume 156 (2010), Part 3]
[Senate]
[Pages 2961-2962]
[From the U.S. 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 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

[[Page 2962]]

     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.
                                  ____


                [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.

                          ____________________