Ginsburg made her remarks at an awards ceremony hosted by the Pro Bono Institute at the National Museum of Women in the Arts, the Blog of Legal Times reported Monday.
In her introduction of General Electric Co. General Counsel Brackett Denniston III, who was receiving an award, Ginsburg mentioned the attacks on lawyers who represented terrorism suspects.
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.”
On Friday, Ginsburg said the ad reminded her of a similar situation in 2007. A Pentagon official in charge of detainee affairs, Charles “Cully” Stimson, expressed disappointment that lawyers from major companies including GE represented Guantanamo detainees.
“I remember speaking with Brackett about that situation, and he said, ‘Pro bono service and the rule of law are great traditions at GE, and we have no intention of changing our relationships with firms based on pro bono efforts in which they are engaged,’” Ginsburg said, according to BLT. “The truth is that justice is served when there is quality representation by lawyers for everyone.”
(Interestingly, two weeks ago Stimson was among the signatories of a statement decrying the attacks on DOJ attorneys who represented the terrorism detainees.)
Attorney General Eric Holder also defended lawyers who represent the “the unpopular” — such as Guantanamo Bay detainees — hailing them as “patriots” in a speech at the Pro Bono Institute on Friday.
“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
Keep America Safe’s video on the Justice Department lawyers who previously worked on behalf of detained terrorism suspects has prompted quite a discussion, but John C. Yoo didn’t think the debate was necessary, reported the New York Times.
“What’s the big whoop?” said Yoo, the former DOJ Office of Legal Counsel official whose memorandums on torture and presidential power were used to justify controversial interrogation policies of the George W. Bush administration.
“The Constitution makes the president the chief law enforcement officer. We had an election. President Obama has softer policies on terror than his predecessor.
“He can and should put people into office who share his views,” Yoo told The Times. Once the American people know who the policy makers are, Yoo said, “they can decide whether they agree with him or not.”
The video aroused not only liberal outrage directed at the producers of the short film, but also division among conservative legal scholars, according to The Times. The video was produced by Keep America Safe, a conservative interest group in Washington, D.C., run by Liz Cheney, the daughter of the former vice president.
Conservative members of the Federalist Society, the 25-year-old policy group devoted to conservative and libertarian legal ideals, have criticized the video, and said it violated the American legal principle that even unpopular defendants deserve a lawyer.
A letter issued by the Brookings Institution criticizing the “shameful series of attacks” on government lawyers was signed by several former Republican administration officials and conservative legal figures, including Kenneth W. Starr, the former special prosecutor, Charles D. Stimson, who resigned from the second Bush administration after suggesting that businesses might think twice before hiring law firms that had represented detainees, Peter D. Keisler, a former acting attorney general, and Larry D. Thompson, a former deputy attorney general.
Richard A. Epstein, a law professor at the University of Chicago who once taught Liz Cheney, said he found it “appalling” to see people equating work on detainee cases with a dearth of patriotism.
“You don’t want to give the impression that because you oppose the government on this thing, that means you’re just one of those lefties — which I am not,” he told The Times.
David M. McIntosh, a former member of Congress and a founder of the Federalist Society, agreed that a lawyer should not be judged by his clients, but he said it was legitimate to examine the agenda of the lawyers.
“Was the person acting merely as an attorney doing their best to represent a client’s case, or did they seek out the opportunity to represent them or write an amicus brief because they have a political or personal agenda that made them more interested in participating in those cases?” he said.
If the commitment to the cases is ideological, McIntosh said, it is reasonable to ask, “Is that the best attorney for the Justice Department?”
On The Daily Show on Tuesday night, comedian Jon Stewart took on the group that published an ad last week targeting Justice Department lawyers who previously represented Guantanamo detainees.
“Who’s in the al-Qaeda seven? It’s an innocuous question, like ‘who’s in the Jackson Five?’” joked Stewart.
Numerous top lawyers, including conservative former members of the George W. Bush administration, have denounced the ad put out by Keep America Safe, an organization founded by Liz Cheney, the daughter of former Vice President Dick Cheney, and Bill Kristol of The Weekly Standard.
Despite the tone of the advertisement, Keep America Safe maintains that it is not accusing DOJ lawyers of being disloyal and is concerned only about transparency.
“You would not believe how obstinate the Attorney General can be,” said Stewart, setting up a clip of former Attorney General John Ashcroft testifying about why he refused to turn over documents.
“We believe that to provide this kind of information would impair that ability of advice-giving in the executive branch to be candid, forthright, through and accurate at all times,” Ashcroft said in the clip.
“I’m sorry, that was the wrong Attorney General, that was John Ashcroft, back when transparency was the thing that abetted the enemy,” joked Stewart.
Stewart poked fun at complaints about the lack of transparency, noting that the names of the lawyers were all available online and just required someone to do the leg work.
“Ah-ha! So the names are out there, but not in list form! And doesn’t collating and alphabetizing distract Keep America Safe from their real job — of making Keep America Safe commercials?” Stewart said.
Author Marc Thiessen and Daily Show host Jon Stewart (Comedy Central).
The interview segment of the show featured former Bush administration speechwriter Mark Thiessen, author of the new book “Courting Disaster. How the CIA Kept America Safe and how Barack Obama is Inviting the Next Attack.”
Stewart and Thiessen spared over the ad, which Thiessen defended in his Washington Post column.
“Where was the moral outrage when fine lawyers like John Yoo, Jay Bybee, David Addington, Jim Haynes, Steve Bradbury and others came under vicious personal attack?” Thiessen asked in the column. “Their critics did not demand simple transparency; they demanded heads. They called these individuals ‘war criminals’ and sought to have them fired, disbarred, impeached and even jailed. Where were the defenders of the ‘al-Qaeda seven’ when a Spanish judge tried to indict the ‘Bush six‘? Philippe Sands, author of the ‘Torture Team,’ crowed: ‘This is the end of these people’s professional reputations!’ I don’t recall anyone accusing him of ’shameful personal attacks.”
On The Daily Show, Thiessen tried to shoot down the arguments that lawyers have an obligation to defend even the worst criminals.
“John Adams actually represented people who had been accused of crimes. There’s a vast difference between representing someone who has been accused of a crime — everybody gets a lawyer under the Sixth Amendment if you’ve been accused of a crime,” said Thiessen. “The people in Guantanamo Bay have not been accused of crimes, they are being held as enemy combatants in a time of war.”
Stewart shot back, chiding Thiessen for having a selective memory about the history of terrorism in the U.S.
“It’s a very selective world that you live in, and it must be very lovely to live there, but things are not so clear cut,” said Stewart.
Thiessen complained at the end of the interview that he had not been given enough time to speak.
“I can’t get my points out on the air?” Thiessen said. “I think you’re talked right through me.”
The full unedited interview, which runs at almost a half hour, was posted online. But even after that period, Thiessen and Stewart we no closer than when they started.
“We’re not so different, you and I, except completely,” Stewart said.
Videos segment and of the interview, in three parts, are embedded below.
Lawyers at some of the biggest firms in Washington, D.C., weighed in on the recent disclosure of the nine Justice Department lawyers who represented alleged terrorist detainees while working in private practice, The Blog of Legal Times reported Friday. The names of two of the nine were previously known and Fox News identified the remaining seven on Wednesday.
On Monday, Keep America Safe, a conservative non-profit founded by Elizabeth Cheney and Bill Kristol, released a video that sharply criticized and questioned the loyalty of the lawyers for their previous work. The video referred to the seven then-unidentified lawyers as the “al Qaeda Seven.”
One of the seven is Karl Thompson, who previously worked for O’Melveny & Myers LLP and was part of the team that defended Omar Khadr. Thompson is now at the DOJ Office of Legal Counsel. In an op-ed for the Washington Post Friday, former Acting Solicitor General Walter Dellinger defended the DOJ lawyer and said he asked Thompson to help with Khadr’s case. (See our story on Dellinger’s piece here.)
Brian Brooks, managing partner of O’Melveny’s Washington, D.C., office, also spoke up for Thompson, according to the BLT.
“From the perspective of our firm, providing representation for unpopular causes is a long and noble tradition in the law, and that kind of criticism is not going to affect our firm’s commitment to that cause,” Brooks said. “If the private bar doesn’t step up and show that kind of courage, then I think our whole system of justice is in question.”
Brooks, a self-proclaimed conservative, added, “There’s a consensus from left to right that law and justice need to be insulated from politics.”
Carter Phillips, now the managing partner of Sidley Austin LLP’s Washington, D.C. office, told The BLT he feels “horrible” that a former partner, Joseph Guerra, now Principal Deputy Associate Attorney General, is taking heat for his participation in a U.S. Supreme Court brief in a detainee case.
Phillips, who also was on the brief, said, “I always think it is an outrage when people attack the lawyers for whom they represent. To me it’s unfortunate that we’re talking about wonderful talent, relatively young lawyers who … are now being pilloried for something that they ought to have been cheered for.”
Thomas Milch, chair of Arnold & Porter LLP, said he is proud to have colleagues who advocated on behalf of detainees. “I really do salute the private lawyers who stepped up to represent the Guantanamo detainees,” Milch said. “It’s an act in the best traditions of the profession, and I salute even more the lawyers who then went in to the government.”
In an email to The BLT, Miguel Estrada, a partner at Gibson, Dunn & Crutcher LLP and a Bush administration judicial nominee, said that the video would probably not deter lawyers from future pro bono work. But he added that the public should know who the attorneys are.
Estrada wrote, “It is also fair to conclude that those lawyers personally favor giving greater procedural protections to people who may want to do us harm. But at the same time it is not necessarily fair to conclude that they cannot put their personal preferences aside in working for the government. That depends on the individual involved. I suspect some do and others don’t.”
In an Op-ed in Friday’s Washington Post, Former Acting Solicitor General Walter Dellinger excoriated a video put out this week by Liz Cheney’s conservative non-profit Keep America Safe that questioned the loyalty of Justice Department lawyers who represented alleged terrorist detainees while working in private practice.
“That those in question would have their patriotism, loyalty and values attacked by reputable public figures such as Elizabeth Cheney and journalists such as [William] Kristol is as depressing a public episode as I have witnessed in many years,” Dellinger wrote. “What has become of our civic life in America? The only word that can do justice to the personal attacks on these fine lawyers — and on the integrity of our legal system — is shameful. Shameful.”
The group has been needling Holder on the issue for months after the DOJ disclosed that nine employees previously represented detainees or worked for organizations that advocate changes to terrorism policies. The names of two of the nine were already known and Fox News identified the remaining seven on Wednesday. The video referred to the seven lawyers as the “al Qaeda Seven.”
Dellinger, who also headed the DOJ’s Office of Legal Counsel and is now a partner at O’Melveny & Myers, defended the record of Karl Thompson, one of the nine lawyers who represented detainees. Thompson, now himself an OLC lawyer, aided Defense Department lawyer Rebecca Snyder and Lt. Cmdr. William Kuebler in their defense of alleged terrorist Omar Kadhr.
Below is excerpt of Dellinger’s piece, click here to read the rest.
It never occurred to me on the day that Defense Department lawyer Rebecca Snyder and Lt. Cmdr. William Kuebler of the Navy appeared in my law firm’s offices to ask for our assistance in carrying out their duties as military defense lawyers that the young lawyer who worked with me on that matter would be publicly attacked for having done so. And yet this week that lawyer and eight other Justice Department attorneys have been attacked in a video released by a group called Keep America Safe (whose board members include William Kristol and Elizabeth Cheney) for having provided legal assistance to detainees before joining the department. The video questions their loyalty to the United States, asking: “DOJ: Department of Jihad?” and “Who are these government officials? . . . Whose values do they share?”
Here, in brief, is the story of one of those lawyers.
In June 2007, I was at a federal judicial conference when I received an urgent message to call the Defense Department. The caller was Lt. Cmdr. Kuebler, a uniformed Navy officer who had been detailed to the Office of Military Commissions. As part of his military duties, Kuebler had been assigned to represent Omar Khadr, a Guantanamo detainee who was to be tried before a military commission. Kuebler told me that the U.S. Supreme Court had agreed that day to review the case of another detainee who had been a part of the same lower court proceeding as Khadr. Because Kuebler’s client had not sought review at the Supreme Court, this situation raised some complex questions of court practice with which Kuebler was unfamiliar. Kuebler’s military superior suggested he call me and ask whether I could assist him in analyzing the applicable Supreme Court rule.
It was a Friday night. I called Karl Thompson, a lawyer at my firm who had previously been a Supreme Court law clerk, and asked whether he could look into the question over the weekend. I told Thompson that the military lawyers assigned to these cases had a very burdensome workload and that it seemed that Kuebler could really use our help. Even though Thompson was extremely busy with other work at the firm, he said he would somehow find time for this as well.
Earlier Wednesday, Justice Department officials confirmed to FoxNews the list of DOJ attorneys dubbed the “al-Qaeda Seven” — a group of lawyers lambasted in a Keep America Safe advertisement who represented Guantanamo detainees prior to their government service.
Assistant Attorney General for the Civil Division Tony West (Lonnie Tague/DOJ)
Surprisingly, that list includes Assistant Attorney General for the Civil Division Tony West, despite the fact that his representation of “American Taliban” John Walker Lindh has long been public knowledge.
In 2002, West joined a team of lawyers that represented Lindh. He discussed the case on a chat with The Washington Post back in 2002 and has appeared in numerous news articles as one of Lindh’s lawyers.
“West’s representation of Lindh is probably his best-known work, and was prominently mentioned in the ledes of several articles reporting on his nomination,” writes Media Matters.
West’s representation of Lindh was brought up during his confirmation hearing in March 2009, but few voiced any opposition to his nomination at that time. Ultimately only four Republican senators voted against West’s nomination. Sen. Charles Grassley (R-Iowa), who has pressed for information on the detainee lawyer issue, voted in favor of West’s confirmation.
Although West was not identified by name, on Feb. 18 Assistant Attorney General for the Office of Legislative Affairs Ronald Weich publicly acknowledged West’s role in the Lindh case. In a letter to Grassley, Weich wrote that “the Assistant Attorney General for the Civil Division previously represented one Afghanistan detainee, and his former employer represents other detainees.”
A spokesman for Keep America Safe said that disclosing solely the position of someone who represented terrorism suspects - even if there is only one person who fit such a description - is not good enough.
“If you only give the position and not the name, it’s another barrier to disclosing information that should be readily available,” Aaron Harison of Keep America Safe told Main Justice.
The Justice Department’s Information Service Center is experiencing a higher than normal influx of calls from people who want to complain about the government lawyers who previously represented Guantanamo detainees.
A screen shot from the advertisement put out by Keep America Safe attacking Attorney General Eric Holder and the Justice Department.
When a Main Justice reporter called the number Tuesday, a DOJ operator who answered said it was one of the busier days in recent memory and that many callers referenced an advertisement put out by Keep America Safe, an organization founded by Liz Cheney, the daughter of former Vice President Dick Cheney, and Bill Kristol of The Weekly Standard.
A Justice Department spokesman declined to comment on the center’s call volume.
Keep America Safe employs several conservative supporters who support the anti-terrorism policies of former President George W. Bush. The organization receives financial backing from Melvin Sembler, a conservative fundraiser. Michael Goldfarb, a spokesman for Republican John McCain’s 2008 presidential campaign, also serves as a political strategist.
At the Conservative Political Action Conference in February, Liz Cheney slammed President Barack Obama and Attorney General Eric Holder for their handling of terrorism related issues. Their latest attack revolves around DOJ’s refusal to disclose the names of seven lawyers at the Justice Department who previously represented terrorism suspects.
Justice Department spokesman Matthew Miller told Main Justice that the letter that DOJ sent to Congress regarding the employees who previously represented Guantanamo detainees answered most of the questions.
Some liberal critics struck back at the ad, even calling the tactics “McCarthyism.”
“It’s not kind of like McCarthyism, it is exactly what Joe McCarthy did with his Communist witch hunts,” Ken Gude of the Center for American Progress told TPMmuckraker. “Cheney accuses the Attorney General of the United States of being a supporter of al Qaeda and running the ‘Department of Jihad,’” a reference to the Investor’s Business Daily editorial that is featured in the Cheney ad.
Miller declined to join such criticism, but said it is helpful to remind the public that terrorism suspects had been prosecuted in criminal court during previous administrations.
As Josh Gerstein wrote in Politico, the Bush administration did not tolerate a similar line of attack made by Defense Department detainee affairs chief Charles Stimson in 2007. He called for a boycott of law firms doing pro bono work for Guantanamo detainees. The Pentagon distanced itself from Stimson’s comments, writes Gerstein, “which were condemned by a broad array of voices in the legal community. Stimson eventually apologized and resigned a short time later.”
Keep America Safe, the conservative non-profit founded by Liz Cheney and Bill Kristol, released a video Tuesday slamming Attorney General Eric Holder for not naming seven current Department of Justice attorneys who represented alleged terrorist detainees before joining the administration.
Set to foreboding music, the ad questions the loyalties of the so-called “Al-Qaeda Seven,” ominously depicted as seven shadowy figures standing in front of a background of jihadist images.
Keep America Safe employs several conservative supporters who support the terrorism policies of former President George W. Bush. The organization receives financial backing from Melvin Sembler, a conservative fundraiser. Michael Goldfarb, a spokesman for Republican John McCain’s 2008 presidential campaign, also serves as a political strategist.
The 501 (c) group has been needling Holder on the issue for months after he disclosed that nine DOJ employees who previously represented detainees or who worked for organizations that advocate changes to terrorism policies. The names of two of the nine are already known; Principal Deputy Solicitor General Neal Katyal formerly represented Osama bin Laden’s driver, and Jennifer Daskal represented detainees during her time at Human Rights Watch.
At a hearing in November, Sen. Charles Grassley, R-Iowa, brought up Katyal and Daskal’s work on behalf of detainees and questioned Holder on the issue. Grassley asked for the names of the lawyers, along with any projects related to detainees they have worked on since joining the DOJ.
Holder declined to disclose the names of the remaining seven appointees, offering a talking point for Republicans. In response, Holder said that it was not uncommon for the Justice Department to hire lawyers who had worked for the other side, citing examples of lawyers in the Tax Division who had represented defendants in tax litigation against the DOJ.
The Keep America Safe video closes by showing a DOJ phone number and urging viewers to call the department and demand that Holder disclose the seven names.
On the heels of an ad critical of the Justice Department and Attorney General Eric Holder put out by a group led by Liz Cheney, former Vice President Dick Cheney’s daughter, a human rights group is hitting back with a parody video that accuses Cheney’s group of using scare tactics.
Meanwhile, the Justice Department is using new media tools to argue in favor of using the criminal justice system to prosecute terrorists.
“As a counter-terrorism tool, the criminal justice system has proven incredibly effective in both incapacitating terrorists and gathering valuable intelligence from and about terrorists,” writes Tracy Russo on the DOJ blog. “In every instance, the administration will use the tool that is most effective for fighting terrorism, and will make those decisions based on pragmatism, not ideology.”
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