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Critics of Justice Dept. lawyers under fire

A conservative group's bashing of several Obama administration lawyers as the "al-Qaida Seven" has struck a nerve in the U.S. legal community, prompting even some fellow Republicans to denounce the group's attack.
/ Source: The Associated Press

A conservative group's bashing of several Obama administration lawyers as the "al-Qaida Seven" has struck a nerve in the U.S. legal community, prompting even some fellow Republicans to denounce the group's attack.

In a video ad circulated over the Internet, the group called Keep America Safe questioned the values of a number of lawyers now working for the Justice Department who did legal work in the past on behalf of terror detainees. Keep America Safe was co-founded by Liz Cheney, daughter of former vice president Dick Cheney, the Republicans' most forceful critic of Obama administration security policies.

The Cheney-branded broadside won wide attention for the fledgling group. The attack follows a long history of Republican claims that Democrats are weaker than the GOP on national security. Whether this attack, which strains long-held American concepts of legal fair play, gathers momentum with the general public remains to be seen, but such criticism has long been used to energize activists on the GOP's right wing.

This time, however, a number of prominent conservative lawyers, including former special prosecutor Kenneth Starr, who served as solicitor general in the Justice Department during George H.W. Bush's administration, signed a letter decrying the attacks as "shameful."

Starr is perhaps best known as the former independent counsel whose office spent millions in the 1990s on a probe of then-President Bill Clinton's affair with Monica Lewinsky and efforts to cover it up, which led to the president's impeachment by the House.

Among the letter's signers were veterans of George W. Bush's Justice Department, including Larry Thompson, who was deputy attorney general, and Viet Dinh, who helped write the Patriot Act. The signers even included Bush's former deputy assistant defense secretary for detainee affairs, Charles "Cully" Stimson, who resigned in 2007 while under fire for saying he found it shocking that lawyers at many top firms represent detainees at the U.S. military prison in Guantanamo Bay, Cuba.

"The American tradition of zealous representation of unpopular clients is at least as old as John Adams' representation of the British soldiers charged in the Boston massacre," their letter said. "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" and "demands a uniformity of background and view in government service from which no administration would benefit."

The letter was crafted by Ben Wittes, a senior fellow at the Brookings Institution think tank, who called the whole debate "a visible symptom of a broader disease" in an increasingly "coarse and stupid" public discussion of how to treat terror suspects.

"The right wants to pretend that this issue is a simple matter of toughness, saying, 'Are you man enough to think about al-Qaida as a war?' And the left throws out nonsense verbiage like 'respect the rule of law,' which basically means if you don't agree with their policy views you're disrespectful of the law," said Wittes.

Matt Bennett, a spokesman for the moderate Democratic group Third Way, said, "Republicans are guaranteed to call their opponents weak on security, regardless of who they are," and have forced Democrats to defend their national security credentials since the Vietnam War.

The issue of past legal work for detainees was first raised in a congressional hearing last year, where Republican senators pressed Attorney General Eric Holder to identify how many such lawyers had been hired by the Obama administration. Holder put them off, and the issue smoldered for months until the interest group went on the offensive.

Holder is likely to face more such questions when he testifies on Capitol Hill this month, as well as new questions about a friend-of-the-court brief he signed years ago in a Supreme Court terror detention case.

Debra Burlingame, a co-founder of Keep America Safe, said its goal is to make the Obama administration answer questions about how it is making decisions about Guantanamo Bay detainees.

"This isn't an attack on lawyers for being lawyers," said Burlingame, a former lawyer whose brother Charles Burlingame was a pilot killed in the Sept. 11 attacks.

"This is a question about who is setting policy, who is involved in advising the attorney general on policy," she said. "It is a legitimate question to ask."

For the most high-profile attorney in that group, the answer is simple.

Tony West, the head of the Justice Department's civil division, was once part of the legal team that represented John Walker Lindh, the so-called American Taliban captured in Afghanistan.

As a member of the Obama administration, West now oversees the government's response to lawsuits by detainees seeking their freedom. In that position, he has signed dozens of legal briefs on detainee matters, most arguing for continued detention of the suspects.

The challenges directed at West and the other lawyers also strike at some core practices of U.S. lawyers — providing free representation for people who can't afford lawyers, or representing people so despised by the public it is difficult for them to hire a lawyer.

Ron Kuby, a longtime criminal defense lawyer in New York who has represented numerous terror defendants, called the questions about the Justice Department lawyers "cheap politics and McCarthyism."

The government can often benefit from hiring lawyers who worked for detainees in the past, Kuby argued, because someone who has worked on the other side of an issue often has important insights.

"If I ever were to decide that I could best serve the Constitution of the United States by locking up the people that I used to represent, I would be darn good at it," said Kuby. "I know how they think, I know what other defense lawyers do, I know every trick that people like me play."

"The right," joked Kuby, "has a problem with lawyers in general, until they need one."