Attacks on Lawyers Were Wrong Before, Too
By Leah Nylen | March 24, 2022 1:25 pm

In a piece for The New Republic published online Wednesday, Brookings Institution fellow Benjamin Wittes again defended current Justice Department lawyers who have faced questions about their loyalty to the United States because they previously represented alleged terrorist detainees. But Wittes, a former legal affairs reporter, took his defense one step further, criticizing Harper’s Magazine and the New York Times, in particular, for engaging in similar smears against lawyers in the George W. Bush administration.

Benjamin Wittes

Benjamin Wittes (Brookings)

Earlier this month, a nonprofit organization headed by Liz Cheney released an ad that attacked the lawyers for their prior representation, dubbing them the “al-Qaeda Seven.”

In response, Wittes organized a joint statement decrying the attacks on DOJ attorneys. The March 8 statement was signed by more than a dozen conservative legal figures, including former Assistant Attorney General for the Civil Division Peter Keisler, former U.S. Attorney for Eastern District of Virginia Chuck Rosenberg and former Associate White House Counsel Bradford Berenson.

Former Solicitor General Kenneth Starr and David Rivkin, the Deputy Director, Office of Policy Development, during the Reagan and George H.W. Bush administrations, also signed on.

In the article Wednesday titled “Presumed Innocent?” Wittes expands on the initial statement, personally defending both Neal Katyal, Principal Deputy Solicitor General, and Jennifer Daskal, an attorney in the National Security Division. Katyal formerly represented Osama bin Laden’s driver, and Daskal worked as a lawyer for Human Rights Watch, an international human rights organization that works against torture.

Wittes spends the last half of his piece exploring an issue that he said arose time and again when he asked former administration officials to sign on to the statement: Where was the outrage before? He writes:

In talking to people about the statement, however, I heard a recurring complaint from members of the prior administration, one that has in my opinion considerable merit: Our political and philosophical opponents never did this for us when the shoe was on the other foot, people said. Why did nobody stand up for the much-maligned lawyers of the Bush administration?

…The attacks then too were often exceedingly ugly and much less different than many people imagine. What links them is the unwillingness to defend the professionalism of people with whom one disagrees about the law — or with clients to whose policies or activities one objects. Vociferous criticism of some Bush-era Justice Department lawyers was altogether appropriate, but that criticism was often wildly over the top, deploying the language of war crimes and conspiracy to describe what was really just flawed, results-driven lawyering under circumstances of extraordinary pressure.

…The people who made often reckless allegations about Bush administration officials — Harper’s writer Scott Horton, for example, has called Haynes a “Torture Lawyer”; The New York Times all but called for his indictment — have never been forced to wrestle with their smears. Very few people ever stood up publicly for the professionalism — even in disagreement and criticism — of members of the last administration who were trying with varying degrees of success to get the right answers to questions that were no easier then than they are now. That fact is worth a moment’s pause.

Wittes recounts how William J. Haynes II, former Pentagon general counsel, and Jack Goldsmith, the former head of the DOJ’s Office of Legal Counsel, were pilloried in the media as “torture lawyers,” when in fact they had opposed the use of highly coercive interrogations techniques, including waterboarding.

He concludes: “Perhaps now that the dust has settled on the Bush administration, we might ask ourselves a question that warranted consideration long ago: Why didn’t the bar stand up and defend professionals on the other side as well when those people were under assault?”

Read his full piece here.



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