Statement on Justice Department Attorney Representation of Guantánamo Detainees

March 8, 2010

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 Guantánamo 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. Guantánamo 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 (2006-08), Southern District of Texas (2005-06)

Harvey Rishikof

Former Legal Counsel Deputy Director of the FBI

Former Administrative Assistant to the Chief Justice of the United States

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

Suzanne E. Spaulding

Former Executive Director of the National Commission on Terrorism
Former Chair of the ABA Standing Committee on Law and National Security

Frank Jimenez

Former General Counsel of the Navy
Former Deputy General Counsel (Legal Counsel), Department of Defense

William H. Taft IV

Former Legal Advisor, U.S. Department of State

Viet Dinh

Professor of Law, Georgetown University Law Center
Principal, Bancroft Associates PLLC
Former Assistant Attorney General for Legal Policy