Editor’s note: The following guest commentary is from George J. Terwilliger III, former Deputy Attorney General during the George H.W. Bush administration.

Department of Justice counter-terrorism policy and programs will get a close examination in front of the Senate Judiciary Committee this week. At the top of the list will be Attorney General Eric Holder’s announced decision to try Khalid Sheikh Mohammed as a criminal in civilian court in lower Manhattan, nearby the site of the devastating September 11 attacks.

From the immediate aftermath of that day through to the present, controversy has surrounded Justice Department policy concerning how to deal with both the perpetrators of the attack and those who continue to assiduously dedicate themselves to the killing of more innocent Americans through acts of terror. While legitimate debate on this topic is a virtue in a democracy, politically driven criticism concerning it is a vice of our times. It ought to stop.

Both substantive and philosophic debate concerning the best means and methods to combat this scourge of terrorism is healthy. However, politically driven criticism of an Attorney General’s ultimate decisions on these issues, whether directed at Eric Holder or Alberto Gonzalez, is not only unhealthy, but undermines Americans’ respect for the rule of law and adversely effects the bold response needed from government in these programs.

Many of us, including people like me who have toiled in this vineyard before, have opinions about the issues and bring the both practical and philosophic concerns to discussion of them. While I disagree with Attorney General Holder’s decision to move KSM to a civilian court, I respect his right to make that decision if undertaken for substantive, rather than political, reasons. It may be the wrong call because while KSM may have violated criminal statutes, the essential core of his bad deeds is something much greater than crime and should be treated as such.

As importantly, our criminal justice system is simply not equipped to protect the sources and methods by which the vital information that can be used to protect us against future attacks is gathered. On the contrary, the criminal justice system promotes defense access to any information that might tend to show an accused’s innocence or mitigate punishment. Attorney General Holder himself put new vigor in this disclosure policy by undoing the conviction of Senator Ted Stevens because prosecutors withheld information from his lawyers that the trial judge and the Attorney General believed should have been disclosed. The current administration of the Justice Department is, as a result, in no position to assure Americans that a vigorous defense by capable lawyers on KSM’s behalf will not lead to disclosure of information that would be better kept, for the safety of Americans, under tighter wrap.

Nonetheless, while there may be substantive bases for criticism of this decision by the Attorney General, it would be a mistake to exploit that disagreement as a basis for further politicizing the general debate about the Department of Justice’s counter-terrorism role and responsibilities. Rather, the touchstone of inquiry on those subjects ought to be substantive, focused on what the responsible intelligence and law enforcement professionals tell us they need to get the job done.

Over-politicizing this debate leads to bureaucratic timidity, where instead, in order to prevail against terrorists, individual and organizational boldness is required. Front line intelligence officers, law enforcement agents and prosecutors, as well as their operational supervisors who see an Attorney General being pilloried for political purposes on counterterrorism policies and programs, can see themselves next being transformed into targets .

While they may not ever sit under the klieg lights in the ornate Judiciary Committee hearing room, they can have it worse sweating through prolonged investigations into their professional conduct, much of it egged on by second-guessing Monday morning quarterbacks examining front-line decisions with a rear echelon mentality. As a result, in a very real way, politicizing the debate about counter-terrorism policies and programs threatens our safety because it sends the wrong message to those with a frontline responsibility to secure our interests.

One sitting on the outside can always find individual decisions made by those on the inside to criticize. For example, while I generally wouldn’t hire at the Justice Department former mobster lawyers to prosecute organized crime cases, nonetheless if I was convinced that someone who had had such a case was the right person for the job, I would not rule it out.

The same goes for people who may have seen fit to represent an unlawful combatant’s legal interests. The question is not whether such a person ought to be deemed disqualified by philosophic orientation, but whether they are the best person to be given a particular responsibility.

Whether the debate is about personnel decisions, legal policy in counterterrorism programs or the appropriate role of civilian versus non-civilian authorities in the adjudication of responsibility for terror acts and threats, the legitimate subject of debate needs to be centered on what works and what does not. If we stay focused on that and resist the temptation to further polarize through politicization the terror debate, the country will be better served.

George J. Terwilliger III served as Deputy Attorney General from 1991 to 1993. He is currently a partner at White & Case LLP. The views expressed are his own.

Pierce O’Donnell (www.pierceodonnell.com)

Federal prosecutors are arguing that a prominent Democratic attorney in Los Angeles violated the spirit of the Federal Election Campaign Act when he made donations to John Edwards’s 2004 presidential campaign in his clients’ names, The National Law Journal reports.

Plaintiff attorney Pierce O’Donnell in 2003 donated $26,000 to Edwards’s campaign in the names of 13 other people, the government has alleged.

In June, a California judge dismissed the bulk of charges against O’Donnell. The ruling by U.S. District Judge S. James Otero was a setback for then-U.S. Attorney Tom O’Brien, a Bush appointee who resigned earlier this month to join the Paul Hastings law firm.

While FECA does not specifically address “conduit” or “indirect” contributions, federal prosecutors believe the donations violated the intention of the law, The NLJ reported. The law says: ”No person shall make a contribution in the name of another person or knowingly permit his name to be used to effect such a contribution, and no person shall knowingly accept a contribution made by one person in the name of another person.”

The brief filed Monday with the U.S. Court of Appeals for the 9th Circuit was signed by acting U.S. Attorney George C. Cardona and Assistant U.S. Attorneys Christine C. Ewell and Erik M. Silber. The prosecutors wrote, “The question is not whether Congress could have used different words, but whether the wording Congress actually chose embraces the conduct at issue; here, it does.” They added, “There is no functional difference between contributing using a false name and contributing using the name of a straw donor.”

O’Donnell is represented by George J. Terwilliger III, a partner at White & Case.

Central District of California U.S. Attorney Thomas P. O’Brien will step down from his post Sept. 1 to join the Paul Hastings law firm, The Los Angeles Times reported last night.

The Senate confirmed the Bush appointee in October 2007. We previously reported on a couple of controversies surrounding the former Navy Top Gun instructor and gang prosecutor.

Thomas P. O'Brien (DOJ)

O’Brien issued a secret memo in February that directed prosecutors to cease filing charges against clinics that distributed medical marijuana. The ban came shortly after Attorney General Eric Holder said the Justice Department would not raid medicinal marijuana facilities that are legal under state law.

The U.S. Attorney dropped the embargo in March and then went on to win the case against California pot dispensary owner Charles Lynch in June. Medical marijuana supporters said the successful prosecution would have a chilling effect on efforts to protect medicinal pot.

O’Brien was also criticized when he lost the bulk of his case against Democratic donor Pierce O’Donnell, who was accused of illegally reimbursing employees for contributions to John Edwards’s 2004 presidential campaign. U.S. District Judge S. James Otero threw out the majority of the charges against O’Donnell in June.

O’Donnell lawyer George Terwilliger said O’Brien “overreached” in his prosecution. The defense team had questioned whether Bush-appointed O’Brien targeted O’Donnell for his representation of Hurricane Katrina victims in a lawsuit against the U.S., and because he’d criticized Bush’s civil rights policies after the 9/11 attacks. Read our previous report here.

The U.S. Attorney, however, was lauded for fighting gang crime. He received the Attorney General’s Award for Exceptional Service – the highest award given by the Attorney General — for his efforts in probing and prosecuting gang members.

George Terwilliger III

Former Deputy Attorney General George Terwilliger III, currently a partner at White & Case LLP in Washington, D.C., filed a motion today in Anchorage’s federal court requesting he be allowed to represent Bill Allen, the former Veco Corp. executive who pleaded guilty to bribing Alaska lawmakers and has been cooperating in the government’s public corruption investigation, reports the Alaska Dispatch.

Terwilliger was Assistant U.S. Attorney for the District of Columbia from 1978-81, after which he became the U.S. Attorney for the District of Vermont.  Terwilliger also led the Bush legal team in the florida recount in 2000.  We reported on Terwilliger a while back, when he got charges dismissed against a prominent Democratic donor in California.

In 2007, Allen pleaded guilty to federal bribery charges, and decided to cooperate in exchange for a lower prison sentence, a guarantee his three adult children would not be prosecuted in relation to the probe, and that he be allowed to sell Veco.

But Allen’s role as the government’s key witness was “tainted,” to say the least, by misconduct in the Ted Stevens case.  Allen’s interviews had been witheld from Stevens’ lawyers, and lawyers for former state Reps. Kohring and Kott.

Today, federal prosecutors are supposed to file an update with U.S. District Judge John Sedwick deciding whether they still need Allen’s help in their corruption investigation, otherwise Allen will be scheduled for sentencing.

Robert Bundy

Former U.S. Attorney for Alaska Robert Bundy, now a partner at Dorsey & Whitney LLP, has been representing Allen since 2006, and will continue to do so.

A California judge on Monday dropped the bulk of charges against a prominent Democratic attorney accused of illegally reimbursing employees for contributions to John Edwards’s 2004 presidential campaign. Read the Los Angeles Times story here. Read the National Law Journal story here.

Tom O'Brien (gov)

“The charges were dismissed because the U.S. attorney overreached in an attempt to use the law far more broadly than its terms allow,” Pierce O’Donnell’s attorney, George Terwilliger, said in a prepared statement, the LA Times reported.

The ruling by U.S. District Judge S. James Otero was a setback to U.S. Attorney Tom O’Brien in LA. The lawyer’s defense team had questioned whether Bush-appointed O’Brien targeted O’Donnell for his representation of Hurricane Katrina victims in a lawsuit against the U.S., and because he’d criticized Bush’s civil rights policies after the 9/11 attacks.

A spokesman for O’Brien said the office was reviewing the ruling and deciding whether to appeal.