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Justice Ginsburg Calls Attacks on Gitmo Lawyers ‘Unsettling’

Monday, March 22nd, 2010

Supreme Court Justice Ruth Bader Ginsburg said Friday that political attacks on the Justice Department lawyers who previously represented Guantanamo Bay detainees were “unsettling.”

Supreme Court Justice Ruth Bader Ginsburg (SCOTUS photo)

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.

Full Statement

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.”

Benjamin Wittes

· Senior Fellow and Research Director in Public Law, The Brookings Institution

· Member, Hoover Task Force on National Security and Law

Robert Chesney

· Charles I. Francis Professor in Law, University of Texas School of Law

· Nonresident, Senior Fellow, Governance Studies, The Brookings Institution

Matthew Waxman

· Associate Professor, Columbia Law School

· Former Deputy Assistant Secretary of Defense for Detainee Affairs

· Member, Hoover Task Force on National Security and Law

David Rivkin

· 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

Lee Casey

· Partner, Baker & Hostetler L.L.P.

· Former Attorney-Adviser Office of Legal Counsel & Office of Legal Policy, U.S. Department of Justice

Philip Bobbitt

· 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

Peter Keisler

· Former Assistant Attorney General, Civil Division

· Former Acting Attorney General, Department of Justice

Bradford Berenson

· Partner, Sidley Austin, L.L.P.

· Adjunct Fellow, American Enterprise Institute

Kenneth Anderson

· 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

Philip Zelikow

Kenneth W. Starr

· Duane and Kelley Roberts Dean, Pepperdine University School of Law

Larry Thompson

· 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

Chuck Rosenberg

· United States Attorney, Eastern District of Virginia (2006-2008), Southern District of Texas (2005-2006)

Harvey Rishikoff

· Professor of Law, National Defense University, National War College

Orin Kerr

· Professor, George Washington University Law School

Daniel Dell’Orto

· Former Principal Deputy General Counsel, U.S. Department of Defense

· Former Acting General Counsel, U.S. Department of Defense

Tags:
Benjamin Wittes, detainees, Guantanamo Bay Detainees, terrorism, The Brookings Institution

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Conservatives Come to Defense of DOJ Lawyers « Hsiang-Ching Tseng 曾祥青 says:

March 17, 2022 at 1:04 am (Edit)

[...] March 8, 2022 · Leave a Comment Read the full story and statement at MainJustice.com [...]

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The Supreme Court last week heard oral arguments on a case that could determine whether citizens can receive compensation for bringing False Claims Act lawsuits based on information already publicly available at the local level, AboutLawsuits.com reported.

Whistleblowers are entitled to between 15 percent and 25 percent of the money recovered by the federal government under the False Claims Act – if the information used in the case has not already appeared in congressional, administrative or Government Accountability Office reports, audits or hearings. Last week’s case centers on whether that same prohibition extends to publicly available information from state and local sources.

A federal appeals court has ruled that a whistleblower claim could be brought under the federal False Claims Act, even though information on which she based her suit was publicly available — from a county audit.

Whistleblower Karen Wilson, an employee of Graham County, N.C., Soil and Water Conservation District, accused her employer of fraudulently handling relief funds after a 1995 storm.

Because much of the information on which Wilson based her False Claims Act suit was publicly available, a federal judge initially threw out the claim. But the U.S. Court of Appeals for the 4th Circuit reversed that decision, arguing that the law applies only to federal reports. The county appealed and the high court accepted the case — Graham County Soil & Water Conservation District v. United States.

The federal government backs Wilson. Assistant U.S. Solicitor General Douglas Hallward-Driemeier last week told justices that the federal government lacks the ability to comb through local audits and reports, so the law should be read to only apply to federal documents.

But Christopher Browning, arguing on behalf of Graham County, said that allowing local reports to be used by whistleblowers would prompt a flood of frivolous suits stemming from problems that officials are already aware of.

SCOTUSblog reports that it’s unclear how the court stands, with Justice Stephen Breyer conceding that he is “up in the air” over the case. Chief Justice John Roberts also seemed undecided, asking Browning whether he had “any tie-breaker on your side.” Justices Antonin Scalia and Ruth Bader Ginsburg said that they were concerned that the case could wind up reducing the ability of whistleblowers to file qui tam lawsuits.

Browning argued that relators (as citizens filing False Claims Act cases are called) filing cases on behalf of the federal government could use already publicly available reports to bilk the federal government of money. But Breyer questioned why the court should not simply defer to the federal government, since it is the one arguing for the broader interpretation, and the federal government would ostensibly suffer from the effects of an onset of frivolous suits, according to False Claims Counsel.

The Justice Department last month announced that it had recovered $2.4 billion in settlements and judgments from False Claims Act cases in fiscal 2009, the second largest haul since the statute was reformed more than 20 years ago.

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