"Keeping America Safe" and the integrity of the justice system...

In the first days of March, Keep America Safe released an ad calling for Attorney General Eric Holder to release the identities of all nine members of the Justice Department who once represented Guantanamo Bay detainees (at the time, only two of the nine were known to the public). Actually, the ad did more than that. Beginning with a mock newspaper headline that read, “DOJ: Department of Jihad,” the ad not-so-cleverly and not-so-subtly implied that the Department of Justice was rife with covert terrorist sympathizers, bent on weakening America from the inside. “Whose values do they share,” the ad asks, while a picture of Osama Bin Laden appears faintly in the background.

Elizabeth Cheney, a co-founder of Keep America Safe and the daughter of the former Vice President, insists that the ad “doesn’t question anybody’s loyalty.” Because branding these lawyers the “Al-Qaeda 7” surely wasn’t an attempt to question their loyalty.

A host of attorneys, including many prominent Republicans, have denounced the ad. Some have compared these attorneys to John Adams, for his representation of British soldiers involved in the Boston Massacre. In general, the only person in America who actually agrees with Keep America Safe may well be the columnist Bill Kristol (one of the group’s co-founders).

While much has already been said on this topic, I wanted to share a few thoughts.

First, the ad rests on a premise that is not only wrong, but flies in the face of the very foundations of our system of justice. The ad claims that these lawyers represented “terrorist detainees,” and according to Keep America Safe spokesman Michael Goldfarb “propagandized on behalf of our enemies.” However, this language is misleading.

The lawyers represented “allegedly terrorist detainees,” and that is no minor distinction. Of the roughly 775 detainees that at one time were held at Guantanamo Bay, nearly 500 have been released without charge. The Liz Cheney argument is that we should be suspicious of lawyers who defend “our enemies,” but this argument assumes that the Guantanamo Bay detainees were all actually “our enemies.”

In fact, the question of detainee status was the reason why the tribunals were created in the first place. But in the world of Liz Cheney, an enemy is an enemy at the point that he is accused of being an enemy, and at that point he should not have access to an attorney to help him combat this accusation.

Second, the “Al-Qaeda 7” ad implies that lawyers who represent an accused terrorist endorse terrorism. Obviously, that is preposterous. Representing a person is not tantamount to endorsing that person’s actions. The defense attorney who represents a serial rapist is surely no proponent of serial rape.

Bill Kristol asks “whether former pro bono lawyers for terrorists should be working on detainee policy for the Justice Department.” Aaron Harison asks, less subtly, “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.” Presumably Messrs. Kristol and Harison are implying that an attorney who represented a Guantanamo Bay detainee is likely to be sympathetic to ‘terrorist detainees” (and therefore should not be allowed to set detention policy). This claim is also absurd.

A lawyer may take a client for any number of reasons, most of which have nothing to do with shared ideology. Lawyers, when they agree to represent clients, may be motivated by money, prestige, career opportunity or interest in a challenging legal issue. When demanding fair treatment of particularly heinous offenders, a lawyer may even be motivated by a broad-based commitment to the justice system itself – a system which comes under attack every time Bill Kristol argues that unpopular persons should not have access to legal counsel.

Ultimately, the Keep America Safe ad is a sad example of the Democrats’ chickens coming home to roost. The Left asks for the integrity of the justice system and the dignity of the lawyers who serve it to be respected, while having failed to extend the same courtesy to John Yoo and Jay Bybee, the attorneys who worked on the Bush Administration’s torture policy. It is unsurprising that the worm has turned. Despite the now-rejected claims of the DOJ’s Office of Professional Responsibility (rejected by Deputy Attorney General David Margolis), it is not a professional violation to make a strained but still colorable argument on behalf of an unpopular client. It was not a professional violation when John Yoo did it, and it is not a professional violation now that members of Attorney General Holder’s Justice Department have done it.

In a letter rebuking Keep America Safe, Ted Olson, former Bush Administration Solicitor General, wrote, “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.”

When the “Al-Qaeda 7” brouhaha has died down, the Left would do well to remember this.