Posts Tagged ‘The Brookings Institution’
Wednesday, March 24th, 2010

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.

Monday, March 8th, 2010

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.

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