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Sam Stein

The backlash is growing against Liz Cheney after she demonized Department of Justice attorneys as terrorist sympathizers for their past legal work defending Gitmo detainees -- and now it's coming from within deeply conservative legal circles.

On Friday, the conservative blog Power Line put up a post titled, "An Attack That Goes Too Far." Author Paul Mirengoff, called Cheney's effort to brand DoJ officials the "Al Qaeda 7," "vicious" and "unfounded" even if it was right to criticize defense lawyers for voluntarily doing work on behalf of Gitmo detainees.

Reached on the phone, Mirengoff offered an even sharper rebuke, contrasting what Cheney is doing to the anti-communist crusades launched by Sen. Joseph McCarthy and, in some respects, finding it worse.

"It could be worse than some of the assertions made by McCarthy, depending on some of the validity of those assertions," Mirengoff said, explaining that at least McCarthy was correct in pinpointing individuals as communist sympathizers. "It is just baseless to suggest that [these DoJ officials] share al Qaeda values... they didn't actually say it but I think it was a fair implication of what they were saying."

Mirengoff isn't alone among conservative legal theorists who think the ad campaign by Cheney's group, Keep America Safe, is distasteful. In a statement to the American Prospect, John Bellinger III, a former legal adviser to Secretary of State Condoleeza Rice, called the effort "unfortunate."

"It reflects the politicization and the polarization of terrorism issues," Bellinger said. "Neither Republicans nor Democrats should be attacking officials in each other's administrations based solely on the clients they have represented in the past."

Likewise, the Huffington Post reported on Thursday that back in 2007, Ted Olson -- who served as a lead counsel in Bush v. Gore and solicitor general of the United States -- co-authored an article for Legal Times in which he said that efforts to demonize detainee defense lawyers are antithetical to American values.

"When government officials are called 'war criminals' and when public-interest lawyers are called 'terrorist huggers,' it not only cheapens the discourse, it scrambles the dialogue," Olson wrote, along with Neal Katyal, currently a DoJ Deputy Solicitor General and one of the lawyers who represented Gitmo detainees. "The best solutions to these difficult problems will emerge only when the best advocates, backed by weighty resources, bring their talents to bear. And the heavy work of creating solutions for these complicated issues can only move forward when the name-calling ceases."

Cheney, for her part, shows no signs of relenting. Hours after her organization was able to browbeat the DoJ into releasing the names of the seven officials who previously represented detainees, it put out a statement demanding even more disclosure.

"We regret that they still refuse to tell the American people whether any of these lawyers are currently working on detainee issues inside the Department," said Aaron Harison, the executive director of Keep America Safe. "The American people have a right to know whether lawyers who voluntarily flocked to Guantanamo to take up the cause of the terrorists are currently working on detainee issues in President Obama's Justice Department."

Powerline Blog :

Paul Mirengoff

An attack that goes too far

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March 5, 2010 Posted by Paul at 8:33 AM

Earlier this week, Fox News identified the seven Justice Department officials who, prior to being brought to DOJ by the Obama administration, provided legal services to terrorists and terrorist suspects, including Osama bin Laden's driver, John Walker Lindh, and Jose Padilla. The names of two other such lawyers were already known. DOJ has confirmed that Fox News got the additional seven right.

It was appropriate for Senator Grassley and others to seek this information. It is also approprirate to (1) point to the correlation between the presence of this many representatives of terrorists and terrorist suspects and the Holder Justice Department's policy on dealing with terrorists and (2) attempt to ascertain the extent to which these lawyers are making decisions about how to deal with terrorists.

Finally, it is appropriate to criticize lawyers who defend terrorists and terrorist suspects. Contrary to what Walter Dellinger would like us to believe, these lawyers have no professional obligation to represent terrorists and terrorist suspects. They did so by choice and this choice, like all others, is fair game for criticism.

However, it is entirely inappropriate to suggest that these lawyers share the values of terrorists or to dub the seven DOJ lawyers "The al Qaeda Seven." Unfortunately, this is what a video released by the organization Keep America Safe does.

I would rather give up my law license than represent Osama bin Laden's driver, for example. And I take a very dim view of the decision by Deputy Solicitor General Neal Katyal to undertake that representation.

However, I would not deserve to have a law license if my personal views on this matter caused me to launch vicious, unfounded attacks on lawyers who exercise their right to represent despicable clients.

Via Repubclic.

SCOTT notes: I feel roughly the same way Bill Kristol , Liz Cheney and Debra Burlingame do about lawyers who undertake the representation of enemy combatants pro bono as a glorious professional cause. It is unfortunate Bill and Liz and Debra had to seek to shame the Department of Justice into identifying the seven previously unidentified Department of Justice officials who represented or advocated on behalf of Guantanamo detainees. The disclosure of their identities was pro bono publico too.

PAUL adds: The Huffington Post has a story about conservative reaction (or at least the reaction of a handful of conservatives) to the video. The story says I declared that what Cheney did is comparable if not potentially worse than the notorious anti-communist crusades launched by Sen. Joseph McCarthy. It then quotes some of the things I told Huffington Post reporter Sam Stein.

The quotes themselves are accurate, but I think the characterization of what I said is somewhat misleading. In response to Stein's questions asking me to compare the video to "McCarthyism," I said the implication that the DOJ lawyers share al Qaeda's values is almost certainly false. I also said that some of McCarthy's assertions were true and others were false (or unfounded, I'm not sure which word I used).

That, if I recall correctly, was the extent of my willingness to compare the video to "McCarthyism." I don't think I said or implied that the video is comparable to or worse than the totality of what goes by the name of McCarthyism or to the "crusades" launched by Sen. McCarthy.

JOHN adds: Defending the poor, the friendless and the unpopular is a proud tradition of the American bar. I grew up with that tradition, as the son of a small-town lawyer. When criminal defendants needed representation and were indigent--as most of them were--the lawyers in town took turns representing them, for free or for a pittance. It went with the territory, just as doctors treated people for free when they couldn't afford to pay. On those rare occasions when a serious crime was committed, the local judge would ask one of the town's skilled trial lawyers to defend the accused to make sure that the defendant got not just a defense, but a competent defense. That's what happened in To Kill A Mockingbird, as I recall. The local judge asked Atticus Finch to defend the apparently-doomed black man who had been accused of rape. And Finch was duty-bound to accept, although the assignment could only mean trouble for him.

That noble tradition is invoked by those who defended terrorist detainees and who now have gone to work for the Justice Department. Properly so, perhaps. Yet I wonder whether that is exactly what is going on here.

The law firms that signed up to defend al Qaeda terrorists are among the most prestigious in the country. Large law firms of this sort are among our most powerful institutions. They brought vast stature and resources to the task of representing terrorist detainees. The situation is not quite as though a random lawyer in New York or Washington, D.C. had taken his dutiful turn at the thankless job of defending a client who couldn't afford to pay.

One wonders: do these firms, or these lawyers, normally make a practice of volunteering to defend criminal defendants? (These detainees were not criminal defendants, for the most part, but the analogy is nevertheless apt.) My guess is that they do not. What, exactly, drew them to the cause of the terrorist detainees? Was it a humanitarian impulse to defend the friendless? Or were the country's wealthiest and best-connected law firms lining up for the privilege of taking on the terrorists' cases? Were the lawyers who volunteered to represent terrorists driven by ideology? That is to say, were they part of that large segment of the establishment that tried to undermine the foreign and national security policies of the Bush administration? If so, what ideology do these individuals now bring to the Department of Justice? And what roles are they playing within DOJ?

These strike me as legitimate questions. I certainly don't question the right of these lawyers to volunteer their services where they choose, and normally, the motives of a lawyer who volunteers to work for free would be no one else's business. But when those same lawyers, a very short time later, are tapped to work at the Justice Department, isn't the ideology that they--and Eric Holder--bring to national security issues fair game? I think it is.

As for the video, the phrase "the al Qaeda seven" is perhaps unfair. But the point of the video was to pressure Eric Holder to release the names of the lawyers who have shifted over from representing terrorists to representing the American people. He has now done so. If, as is often said, personnel is policy, the fact that the Obama administration has brought not one, not two, but seven lawyers (or is it nine, altogether?) who represented al Qaeda terrorists into the Justice Department may well be worthy of further discussion.