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.
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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Two national security legal experts have proposed a novel solution to the ongoing debate over where to try alleged Sept. 11 mastermind Khalid Sheikh Mohammed and his co-conspirators: don’t try him at all.
In a column for The Washington Post, dated Friday but posted on the newspaper’s Web site Thursday, Benjamin Wittes and Jack Goldsmith argued that the United States should forgo a trial for KSM and instead focus on the issue of terrorist detention. Wittes is a fellow at the Brookings Institution and Goldsmith, now a professor at Harvard Law School, served as Assistant Attorney General for the Office of Legal Counsel during the George W. Bush administration. In the column, Wittes and Goldsmith suggest that the actual venue for the trial is unimportant now that both the Obama administration and Republicans agree that military detention is acceptable.
The politically draining fight about civilian vs. military trials is not worth the costs. It also distracts from more important questions in the legal war against terrorism.
The question of trial forum is important in certain cases. Before the Obama administration embraced the propriety of military detention, it was important for Mohammed too. If one intends to hold people only pursuant to criminal charges, as some in the Obama administration once suggested, the nature of those charges and the forum for them matter a lot.
But these issues matter much less since Obama made clear — to the anger of the left and to assenting nods from just about everyone else — that he reserves the right to detain people outside of the criminal justice system.
Instead, Wittes and Goldsmith propose that Republicans and the Obama administration concentrate on the larger issue of indefinite terrorist detention.
“Eight and a half years after the Sept. 11 attacks, it is time to be realistic about terrorist detention,” the pair wrote. “Instead of expending great energy on a battle over the proper forum for an unnecessary trial of Mohammed and his associates, both sides would do well instead to define the contours of the detention system that will, for the foreseeable future, continue to do the heavy lifting in incapacitating terrorists.”
Read the full column here.
Several conservative attorneys, former Justice Department officials and policy specialists released a joint statement Monday decrying the recent attacks on DOJ attorneys who represented Guantánamo Bay terrorism detainees.
“To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit,” the statement said.
The statement is signed by a number of Bush administration officials, 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.
The statement notes that, “People come to serve in the Justice Department with a diverse array of prior private clients; that is one of the department’s strengths.”
The statement, authored by Benjamin Wittes, a senior fellow at The Brookings Institution, also argues that detainees should have access to counsel and be afforded the right of habeas corpus.
“Good defense counsel is thus key to ensuring that military commissions, federal juries, and federal judges have access to the best arguments and most rigorous factual presentations before making crucial decisions that affect both national security and paramount liberty interests. To delegitimize the role detainee counsel play is to demand adjudications and policymaking stripped of a full record.”
One of the signatories was Charles “Cully” Stimson, a former Pentagon official who is now with The Heritage Foundation. Interestingly, Stimson in January 2007 commented in a radio interview that he found it “shocking” that a number of U.S. law firms had represented Guantánamo detainees, according to American Constitution Society blog. Stimson also suggested that some of the firms were not forthcoming about who was paying for the representation, telling Federal News Radio the firms should be pressed on the matter.
“Some will maintain they are doing it out of the goodness of their heart, that they’re doing it pro bono, and I suspect they are; others are receiving monies from who knows where, and I’d be curious to have them explain that,” Stimson said.
Below is the full statement written by Brookings Senior Fellow Benjamin Wittes and the names of people who signed the statement:
“The past several days have seen a shameful series of attacks on attorneys in the Department of Justice who, in previous legal practice, either represented Guantanamo detainees or advocated for changes to detention policy. As attorneys, former officials, and policy specialists who have worked on detention issues, we consider these attacks both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications.
“The American tradition of zealous representation of unpopular clients is at least as old as John Adams’s representation of the British soldiers charged in the Boston massacre. People come to serve in the Justice Department with a diverse array of prior private clients; that is one of the department’s strengths. The War on Terror raised any number of novel legal questions, which collectively created a significant role in judicial, executive and legislative forums alike for honorable advocacy on behalf of detainees. In several key cases, detainee advocates prevailed before the Supreme Court. To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit.
“Such attacks also undermine the Justice system more broadly. In terrorism detentions and trials alike, defense lawyers are playing, and will continue to play, a key role. Whether one believes in trial by military commission or in federal court, detainees will have access to counsel. Guantanamo detainees likewise have access to lawyers for purposes of habeas review, and the reach of that habeas corpus could eventually extend beyond this population. Good defense counsel is thus key to ensuring that military commissions, federal juries, and federal judges have access to the best arguments and most rigorous factual presentations before making crucial decisions that affect both national security and paramount liberty interests. To delegitimize the role detainee counsel play is to demand adjudications and policymaking stripped of a full record. Whatever systems America develops to handle difficult detention questions will rely, at least some of the time, on an aggressive defense bar; those who take up that function do a service to the system.”
· Senior Fellow and Research Director in Public Law, The Brookings Institution
· Member, Hoover Task Force on National Security and Law
· Charles I. Francis Professor in Law, University of Texas School of Law
· Nonresident, Senior Fellow, Governance Studies, The Brookings Institution
· Associate Professor, Columbia Law School
· Former Deputy Assistant Secretary of Defense for Detainee Affairs
· Member, Hoover Task Force on National Security and Law
· Partner, Washington, D.C. Office, Baker & Hostetler L.L.P.
· Former Deputy Director, Office of Policy Development, Department of Justice, Ronald Reagan and George H.W. Bush Administrations
· Former Associate General Counsel, Department of Energy
· Partner, Baker & Hostetler L.L.P.
· Former Attorney-Adviser Office of Legal Counsel & Office of Legal Policy, U.S. Department of Justice
· Herbert Wechsler Professor of Jurisprudence and Director of the Center for National Security, Columbia Law School
· Member, Hoover Task Force on National Security and Law
· Former Assistant Attorney General, Civil Division
· Former Acting Attorney General, Department of Justice
· Partner, Sidley Austin, L.L.P.
· Adjunct Fellow, American Enterprise Institute
· Professor of Law, American University School of Law
· Research Fellow, The Hoover Institution on War, Revolution, and Peace, Stanford University
· Member, Hoover Task Force on National Security and Law
John Bellinger III
· Partner, Arnold & Porter LLP
· Adjunct Senior Fellow in International and National Security Law, Council on Foreign Relations
· Former Legal Adviser to the Department of State and former Legal Adviser to the National Security Council
Kenneth W. Starr
· Duane and Kelley Roberts Dean, Pepperdine University School of Law
· Former U.S. Deputy Attorney General
Charles “Cully” D. Stimson
· Senior Legal Fellow, The Heritage Foundation
· Former Deputy Assistant Secretary of Defense for Detainee Affairs
· United States Attorney, Eastern District of Virginia (2006-2008), Southern District of Texas (2005-2006)
· Professor of Law, National Defense University, National War College
· Professor, George Washington University Law School
· Former Principal Deputy General Counsel, U.S. Department of Defense
· Former Acting General Counsel, U.S. Department of Defense
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Attorney General Eric Holder, who marked the anniversary of his first year in office last week, is facing a mountain of Republican criticism over his handling of terrorism issues. But at the same time, liberal organizations say they are not satisfied with the Justice Department because it has continued many of the policies of the George W. Bush administration.
On the one-year date of his Feb. 3, 2009, installation as Attorney General, Holder fought back against criticism from GOP senators, penning a letter defending the DOJ’s handling of the Christmas Day airline bomber by comparing his actions to those of the Bush Justice Department.
Meanwhile, he leads a Justice Department that has overshot its original deadline to close the Guantánamo Bay terrorism detainee facility, that has decided to detain a large chunk of the prisoners held there indefinitely and is expected, in an upcoming report, to clear the former Office of Legal Counsel lawyers who authored the so-called “torture memos.”
Late last month, the American Civil Liberties Union issued a report titled “America Unrestored” that highlighted several areas in which it said the Justice Department had not made progress in the goals it set out when President Obama took office. The report said the Obama administration had acted on only a third of the specific goals the ACLU had issued last year, many of which required action from the Justice Department.
The same talking point the Obama administration has used to push back at conservative critics of its terrorism policies — that it is continuing some of the same policies that the Bush administration put in place — points to the biggest concerns liberal organizations have with some of Holder’s decisions.
Main Justice contacted representatives and people affiliated with liberal-leaning human rights and civil liberties organizations to get their take on the biggest unresolved issues during Holder’s first year in office and to highlight a few of the biggest disagreements they have with his decisions so far:
Closing ‘Gitmo,’ but ‘Enshrining’ Indefinite Detention
While the brick-and-mortar issue of closing Guantánamo has dominated the political debate over the handling of terrorism suspects, civil liberties organizations are more upset that the Obama administration has decided to continue holding suspects without charging them in court.
Shortly after the Sept. 11, 2001, attacks, Holder told CNN that the government could hold detainees indefinitely. “It seems to me you can think of these people as combatants and we are in the middle of a war,” Holder said in a CNN interview in January 2002. “And it seems to me that you could probably say, looking at precedent, that you are going to detain these people until war is over, if that is ultimately what we wanted to do.”
His view evolved by the time Obama took office. “A great nation should not detain people, military or civilian, in dark places beyond the reach of law,” Holder said of Guantánamo in 2008 while advising the Obama transition, reported The New Yorker.
In his Senate confirmation hearing last year, Holder made clear he knew of the stakes for holding people indefinitely. “How we resolve that issue,” he said, “will say more about us as a nation than almost anything.”
But once he took office, it became clear that the government decided it could not pursue cases against some of the suspects for a variety of reasons.
President Obama, in a speech at the National Archives in May, acknowledged for the first time the need for indefinite detention. While Obama said he would “work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution,” his administration began claiming in September that Congress authorized such powers when it approved the 2001 authorization to use force against Al Qaeda and the Taliban
Holder tried to assure people he still opposed indefinite detention. During a November meeting with retired generals who advocate the closure of the prison facility in Cuba, Holder said he shared their goal — he, too, wanted to bring the number of prisoners being held indefinitely as enemy combatants down to zero.
“He didn’t initially say that their objective was to get the number to zero, and we felt strongly that the longer we keep people with no charges indefinitely confined, it is not in our interest,” retired Gen. David Maddox told Main Justice. “He came back and said very clearly and said that was their goal, too.”
But a government task force studying the matter of the detainees recently finished its work and concluded, according to a Justice Department official, that 47 detainees will be held as enemy combatants, seemingly contradicting Holder’s assurance. In addition, a larger group of prisoners fall into a classification that amounts to indefinite detention, in which the government has said they can be repatriated but lacks the diplomatic ability to do so, say human rights groups.
Asked whether that reflected a change of thinking, a Justice Department spokesman said he wasn’t familiar with the Attorney General’s comments to the group of retired generals, and said that the plan to detain individuals had been laid out by the president in his May speech at the National Archives.
The indefinite detention issue has been one of the biggest disappointments to human rights organizations, but the conclusion reached by the task force, created by President Obama on his second day in office, should not come as a shock, according to Brooking Institution scholar Benjamin Wittes.
“I don’t start with the point of view that this was a surprising event or that this was something that wasn’t knowable to people who looked at the problem prospectively,” Wittes told Main Justice.
But in the political back-and-forth about Guantánamo, Witte says much of the media coverage has missed the forest for the trees — focusing on the physical facility rather than the policy of indefinite detention that it served as a symbol of.
“It’s sort of the tail wagging the dog, because if you closed it, you’d just have to rebuild it somewhere else,” said Wittes. “The issue is detention, the issue is not the choice of facility at which you do the detention.”
A retired military officer just said that holding suspects without trial is generally a bad idea, and could serve as a recruitment tool for terrorists. He said there were several preferable solutions to holding detainees indefinitely, including sending them through rehabilitation programs such as the program run by Saudi Arabia.
“If we continue indefinite detention and we cannot articulate to the world why we’re doing it, then we’re simply going to move Guantánamo to Illinois or someplace else, and we’ll have a new Guantánamo North, in effect,” said retired Brigadier Gen. James P. Cullen, who advocates the closure of Guantánamo Bay through the organization Human Rights First. “We really need to be able to explain in a credible way, in a way that comports with international law and with common sense, why we’re doing it and for how long.”
Asked if he believed the president had set up the expectation that he would get rid of indefinite detention during the campaign and moved away from that position due to political pressure, an ACLU lawyer said that was really beside the point.
“For me and all of us at the ACLU, the important question isn’t what was said in the campaign, it’s what was said in the Constitution,” said Benjamin Wizner, counsel to the National Security Project of the American Civil Liberties Union.
“There’s no question that the Obama administration inherited a legal and moral mess in Guantánamo,” said Wizner. But, he said, “it’s not accomplishing much to close the prison but enshrine the principle.”
Habeas Corpus Trials
Asked about Holder’s views on holding terrorism suspects without charges, a Justice Department spokesman objected to the use of the term “indefinite detention.”
The spokesman said that Guantánamo detainees who were too dangerous, or whose trial would require the government to use evidence that was too sensitive, would continue to be able to challenge their detention in court.
“The Task Force consulted closely with the Department of Justice in conducting a legal evaluation for every detainee approved for continued detention, addressing both the legal basis for holding the detainee under the AUMF [authorized use of military force] and the government’s case for defending the detention in any habeas litigation,” said the spokesperson. “We’re confident in our ability to demonstrate to the courts that these individuals are being lawfully held under the AUMF.”
But critics say that the results of those habeas corpus trials have been scattered, chiefly because Congress has never put firm rules in place to govern prolonged detention.
In July, the chairman of the Senate Judiciary Committee called for the administration to offer details about how a prolonged detention system would operate.
“I want to understand the scope of the judicial review contemplated under this proposal before determining for myself whether it meets our standards of fair treatment under law,” said Sen. Patrick Leahy (D-Vt.) “I want to ensure that a system established by this administration is grounded in constitutional protections so that it cannot be exploited by future administrations.”
“As Justice Kennedy said in a Supreme Court decision restoring the great writ of habeas corpus, the Constitution is not something an administration is able ‘to switch on and off at will.’ I believe strongly that we can ensure our safety and security, and bring terrorists to justice, in ways that are consistent with our laws and values. I am committed to working with the president to ensure we accomplish that goal,” said Leahy.
But the Justice Department and the administration have yet to develop such a system. Given the decision of the task force last month, representatives are hopeful that such a system can be developed.
“Maybe now that the Obama administration has confessed this fact, that everybody has really known for a long time, it’s not really been a secret that there was going to be a residual population, but maybe now that they’ve said it out loud, they’ll be able to have that conversation about what the rules should be,” said Wittes, one of the authors, along with Robert M. Chesney and Rabea Benhalim, of a new report (PDF) from the Brookings Institute on indefinite detention. They write that “for good or for ill, judges must write the rules governing military detention of terrorist suspects.”
“You have this remarkable delegation of rule-making power to the lower federal courts in the first instance to kind of say who we’re going to be detaining, under what circumstances and using what procedures,” Wittes told Main Justice.
The government is arguing to keep terrorism suspects imprisoned under a legal classification that liberals, including Leahy had previously called a “legal black hole.”
“The basic outlines are still very much in flux and very much in play,” said Wittes. “There’s an enormous range of disagreement among the judges as to a large number of different issues that would be the basic building blocks of any detention system.”
Critics of Bush-era detention and interrogation policies say they are disturbed by media reports that the Justice Department has watered down an ethics report about the lawyers who wrote the legal memorandums justifying enhanced interrogation methods.
Newsweek reported that the long-awaited report from the Justice Department’s Office of Professional Responsibility on the authors of the so-called “torture memos” have been cleared of professional wrongdoing.
The report, currently undergoing the process of declassification, is critical of the legal reasoning used to justify waterboarding and other enhanced interrogation techniques. But unlike a previous draft of the report, the finalized version does not conclude that the lawyers violated their professional obligations as lawyers. The reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” sources told Newsweek.
Justice Department spokeswoman Tracy Schmaler said a redacted version of the report would be released “soon.” She declined to comment on the Newsweek article. Department policy prevents spokesman from discussing reports before they are released.
Critics of the Bush administration’s policies on the handling of terrorism suspects are now speaking out. While he hasn’t seen the investigation or the conclusion, Gen. Cullen said he was “mystified because the law and the history of the law on waterboarding is fairly clear. We have condemned that practice and we have characterized it as torture.”
“The people in the Justice Department — Jay Bybee and John Yoo and a bunch of others at the Office of Legal Counsel — were willing implementers of these policies,” Cullen told Main Justice. “They knew what the law was, they had tremendous resources and research capability. We know that ignorance of the law is no excuse, but these guys knew what the law was, they chose the violate it, and they chose to put our soldiers at significant increased risk because of what they had implemented.”
Yoo and a lawyer for Bybee did not respond to requests for comment.
Mark Filip, former Deputy Attorney General in the Bush administration, also declined to comment on the report because it had not yet been officially released.
Meanwhile, Rep. Jerrold Nadler (D-N.Y.), chairman of the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, when told about the conclusion of the report by a blogger for FireDogLake, said, “It’s very upsetting to hear that. I should hold hearings on that. I’m interested in why a career employee would think his judgment would be better or worse” than the lawyers in the OPR who administered the initial report, he said.