A day after a conservative group released a video condemning the Justice Department for refusing to identify seven lawyers who previously represented or advocated for terror suspects, Fox News has uncovered the identities of the seven lawyers.
The names were confirmed by a Justice Department spokesman, who said “politics has overtaken facts and reality” in a tug-of-war over the lawyers’ identities.
“Department of Justice attorneys work around the clock to keep this country safe, and it is offensive that their patriotism is being questioned,” said Justice Department Spokesman Matt Miller.
The video by the group Keep America Safe, which dubbed the seven lawyers “The Al Qaeda 7,” is the latest salvo in a lengthty political battle.
For several months, Sen. Chuck Grassley (R-IA) has led an effort to uncover politically-appointed lawyers within the Justice Department who have advocated for Guantanamo Bay detainees or other terror suspects.
“The administration has made many highly questionable decisions when it comes to national security, ” Grassley said in a recent statement. “[Americans] have a right to know who advises the Attorney General and the President on these critical matters.”
An extensive review of court documents and media reports by Fox News suggests many of the seven lawyers in question played only minor or short-lived roles in advocating for detainees. However, it’s unclear what roles, if any, they have played in detainee-related matters since joining the Justice Department.
Daniel Foster at The Corner:
The names of the seven DOJ lawyers who represented or advocated for Guantanamo Bay detainees have been uncovered by Fox News and confirmed by the Justice Department. Looks like great investigative work from Fox. And they play it pretty even, saying that most of the lawyers in question “played only minor and short-lived roles in advocating for detainees,” and pointing out that the Bush Justice Department employed lawyers who had been similarly engaged.
The one exception might be Assistant Attorney General Tony West, who works in DOJ’s Civil Division. West represented “American Taliban” John Walker Lindh for several years.
Justin Elliott at TPM:
In Liz Cheney’s worldview, Rudy Giuliani is a disloyal al Qaeda sympathizer.
Let us explain.
Yesterday, Cheney’s outfit, a group called Keep America Safe, went up with a blistering ad that attacked Justice Department lawyers who previously represented Guantanamo detainees and are now working on detainee issues. The ad dubbed the lawyers “the Al Qaeda Seven” and asked “whose values do they share?” while flashing an image of Osama bin Laden.
It turns out that among the many high-profile lawyers who have represented so-called “terrorist detainees” is a top attorney with Rudy Giuliani’s firm, Bracewell Giuliani, according to court documents examined by TPMmuckraker.
Bracewell Giuliani Attorney Carol Elder Bruce, a distinguished white collar litigator, is listed as counsel in two detainee habeas cases, EL-MASHAD et al v. BUSH et al and ALLADEEN et al v. BUSH et al. Both are in the U.S. District Court in the District of Columbia.
El-Mashad, an Egyptian national who was captured near the Pakistan-Afghanistan border in late 2001, was released to Albania late last month.
To be clear, there is absolutely nothing wrong with attorneys representing detainees. In fact, the work — usually done on a pro bono basis — is seen by many as admirable.
As the DOJ pointed out in a letter to Republican senators who argue that lawyers who represented detainees have a conflict of interest, at least 34 of the 50 largest U.S. law firms have either represented detainees or filed amicus briefs in support of detainees.
Meghan Clyne at Daily Caller:
Senator Charles Grassley, Republican of Iowa, has been relentless in trying to determine which lawyers at the Department of Justice previously defended, advocated for or worked on issues pertaining to Guantanamo Bay detainees and other alleged terrorists. While he’s at it, he may want to expand his inquiry — to the halls of the White House itself.
At least two attorneys hired to serve in the White House counsel’s office — part of President Obama’s in-house team of legal advisers — represented Guantanamo detainees in their previous legal careers.
While an associate at the Washington office of the prestigious law firm Wilmer Cutler Pickering Hale & Dorr, Michael Gottlieb — tapped for a White House associate counsel position — was part of the team that successfully argued on behalf of alleged terrorist Lakhdar Boumediene (of Boumediene v. Bush fame).
And while a student at Yale Law School, one of Gottlieb’s fellow associate counsels, Jonathan Kravis, volunteered his time as part of the team that ultimately secured legal victory for alleged Yemeni terrorist Salim Hamdan in Hamdan v. Rumsfeld.
Adam Serwer at The American Prospect:
The “Gitmo Nine” aren’t terrorists. They weren’t captured fighting for the Taliban. They’ve made no attempts to kill Americans. They haven’t declared war on the United States, nor have they joined any group that has. The “Gitmo Nine” are lawyers working in the Department of Justice who fought the Bush administration’s treatment of suspected terrorists as unconstitutional. Now, conservatives are portraying them as agents of the enemy.
In the aftermath of September 11, the Bush administration tried to set up a military-commissions system to try suspected terrorists. The commissions offered few due process rights, denied the accused access to the evidence against them, and allowed the admission of hearsay — and even evidence gained through coercion or abuse. The Bush administration also sought to prevent detainees from challenging their detention in court. Conservatives argued that the nature of the war on terrorism justified the assertion of greater executive power. In case after case, the U.S. Supreme Court sided with the administration’s critics.
“These lawyers were advocating on behalf of our Constitution and our laws. The detention policies of the Bush administration were unconstitutional and illegal, and no higher a legal authority than the Supreme Court of the United States agreed,” says Ken Gude, a human-rights expert with the Center for American Progress, of the recent assault on the Justice Department. “The disgusting logic of these attacks is that the Supreme Court is in league with al-Qaeda.”
The attorneys who challenged the Bush administration’s national-security policies saw themselves as fulfilling their legal obligations by fighting an unconstitutional power grab. At heart, this was a disagreement over process: Should people accused of terrorism be afforded the same human rights and due process protections as anyone else in American custody? But rather than portray the dispute as a conflict over what is and isn’t within constitutional bounds, conservatives argue that anyone who opposed the Bush administration’s policies is a traitor set to undermine America’s safety from within the Justice Department.
“Terrorist sympathizers,” wrote National Review‘s Andrew McCarthy in September, “have assumed positions throughout the Obama administration.”
[…]
By this point the rest of the conservative media had begun taking up the cause, referring to the lawyers Weisch had mentioned as “The Gitmo Nine.” At the Washington Examiner, Byron York accused Holder of “stonewalling” Congress. “Who are the Gitmo 9?” McCarthy demanded to know from his perch at National Review. Then, last Friday, Republicans responded to Weisch, accusing the Justice Department of being “at best nonresponsive and, at worst, intentionally evasive.” The Washington Times followed up, echoing McCarthy’s demand for the identities of the so-called Gitmo Nine. By that point, two Justice Department lawyers, Deputy Solicitor General Neal Katyal and Human Rights Watch former senior counsel Jennifer Daskal, had already been identified. Unlike the Republican senators, whose concerns were centered around “potential conflicts of interest,” the Times editorial argued that “the public has a right to know if past work for terrorist detainees has biased too many of Mr. Holder’s top advisers.” It was a delicate way of suggesting that lawyers who were holding the government to its constitutional obligations were in fact, if not agents of, sympathetic to al-Qaeda.
On Tuesday, all attempts at subtlety were abandoned. Keep America Safe, the conservative advocacy group which was founded by Liz Cheney to defend torture and oppose civilian trials for suspected terrorists and which has close ties to McCarthy, turned the “Gitmo Nine” into the “al-Qaeda Seven.” The group put out a Web video demanding that Holder name the other Justice Department lawyers who had previously represented terrorist detainees or worked on similar issues for groups that opposed the Bush administration’s near-limitless assumption of executive power. “Whose values do they share?” a voice asks ominously. “Americans have a right to know the identity of the al-Qaeda Seven.” The ad echoed McCarthy’s references to the “al-Qaeda bar” from months earlier.
“This is exactly what Joe McCarthy did,” said Gude. “Not kind of like McCarthyism; this is exactly McCarthyism.”
The attorneys who secured greater due process rights for detainees weren’t attempting to prevent terrorists from being punished — they were attempting to prevent the government from assuming limitless power to imprison people indefinitely based on mere suspicion. Not all of those fighting the Bush administration’s policies even believed that terrorists should be tried in civilian courts. Katyal, who litigated the 2006 Hamdan v. Rumsfeld case in which the Supreme Court decided in the detainees’ favor, advocated for using military courts martial — and later, authored an op-ed for The New York Times alongside former Bush lawyer Jack Goldsmith arguing for a new “national security court” to try terrorists. Still, Katyal held that Bush’s general policy for trying terrorists “closely resemble those of King George III.”
You have a right to know. Now you do, thanks to the news organization that the White House communications team has spent the last year trying to delegitimize.
Spencer Ackerman at Washington Independent:
Via Ben Smith, Keep America Safe, the Cheneyite national-security revival tour, has a new video out insinuating that Justice Department attorneys who represented Guantanamo detainees are sympathetic to al-Qaeda, a brazen slander that Sen. Chuck Grassley (R-Iowa) put forward last week against such DOJ officials as Neal Katyal and Jennifer Daskal. Rushing to their defense is retired Air Force Col. Morris Davis, the chief prosecutor of the Cheneys’ beloved military commissions, who told me the attacks are “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,” said Davis, who supervised prosecutions at Guantanamo from 2005 to 2007. “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.” Davis, of course, opposed Katyal on the famous case of Guantanamo Bay detainee Salim Ahmed Hamdan’s habeas corpus rights — a case that Katyal won in the Supreme Court, striking down the first iteration of the military commissions. “He was the epitome of professionalism, and I can’t say that about a lot of the folks involved” in the commissions, Davis continued.
“If you zealously represent a client, there’s nothing shameful about that,” said the retired Air Force colonel. “That’s the American way.”
Thomas Joscelyn at The Weekly Standard:
Do “war on terror” detainees deserve full constitutional rights? My hunch is that most Americans would say no. And, ironically, so has Neal Katyal, when it comes to the detainees held at Bagram. Katyal has reportedly defended the indefinite detention of terrorist suspects as a member of the Obama administration.
This speaks well of Katyal as it shows he is capable of making a responsible national security argument. Katyal’s defenders say he has always seen a difference between Bagram and Guantanamo because, well, one is at an airbase in Cuba and the other is the middle of a warzone in Afghanistan.
But leave it to a lawyer to argue that the Constitution is under assault if detainees are tried by a military commission in Cuba, while everything is just fine if (all else equal) they are held indefinitely without habeas rights in Afghanistan.
One other note about Katyal: He has lamented the slow pace at which the military commissions moved during the Bush years. And they certainly did move at a snail’s pace. But as Time magazine has reported, Katyal helped build “a defense that delayed Hamdan’s military tribunal for years as it gradually made its way through the courts.” That is, those delays are owed, in large part, to Katyal’s handiwork.
[…]
Other lawyers now at the DOJ worked on the historic Boumediene case. That case established the Gitmo detainees’ right to challenge their detention in habeas corpus hearings. In effect, the habeas proceedings have taken sensitive national security and detention questions out of the hands of experienced military and intelligence personnel, and put them into the hands of federal judges with no counterterrorism training or expertise. That lack of experience shows. For example, in one recent decision a federal judge compared al Qaeda’s secure safe houses (where training, plotting and other nefarious activities occur) to “youth hostels.” The habeas decisions are filled with errors of omission, fact, and logic.Still other lawyers did work on behalf of these well known terrorists: Jose Padilla (an al Qaeda operative dispatched by senior al Qaeda terrorists to launch attacks inside America in 2002), John Walker Lindh (the American Taliban), and Saleh al Marri (who 9/11 mastermind Khalid Sheikh Mohammed sent to America on September 10, 2001 in anticipation of committing future attacks).
Now, we don’t know what assignments these lawyers have taken on inside government. But we do know that they openly opposed the American government for years, on behalf of al Qaeda terrorists, and their objections frequently went beyond rational, principled criticisms of detainee policy.
We all have a tendency to look back on shameful events in our nation’s history — slavery, the internment of Japanese-Americans, the McCarthyite witch hunts — and like to believe that we would have been on the right side of those conflicts and would have vigorously opposed those responsible for the wrongs. Here we have real, live, contemporary McCarthyites in our midst — Liz Cheney and Bill Kristol — launching a repulsive smear campaign, and we’ll see what the reaction is and how they’re treated by our political and media elites.
Greenwald on Thiessen
Ben Smith at Politico
Spencer Ackerman at Washington Independent
UPDATE #2: Conor Friedersdorf on Thiessen
Michael Isikoff in Newsweek
William Kristol in The Weekly Standard
John Tabin at The American Spectator
Paul Mirengoff at Powerline
Cesar Conda at The Corner
And Ken Starr on Countdown:
UPDATE #3: Mickey Edwards at The Atlantic
Jacob Sullum at Reason
UPDATE #4: Freidersdorf
Andy McCarthy in USA Today
Jonah Goldberg at The Corner
More Conor
UPDATE #5: Debra Burlingame and Thomas Joscelyn in the WSJ
More McCarthy
More McCarthy
UPDATE #6: Jonathan Chait in TNR
UPDATE #7: Justin Elliott at TPM
Around The Sphere 