Op-Ed

Presumed Innocent? Representing Guantánamo Detainees

Benjamin Wittes

The attacks on the Justice Department lawyers who had represented Guantanamo detainees angered me for several distinct reasons. They typified a growing culture of incivility in the politics of national security and law that I have always loathed and have spoken against repeatedly. They sought to delegitimize the legal defense of politically unpopular clients and to impose a kind of ideological litmus test on Justice Department service. They were also, at least in part, about friends and professional acquaintances. And they reminded me painfully of other friends during the Bush administration who had been similarly slimed and for whom the bar had failed to stand up.

The criticism had been simmering for some time in newspaper columns and editorials, but it exploded in the public arena with the now-infamous web ad by a group called Keep America Safe. The video, ostensibly about the Justice Department’s unwillingness to release the names of all of the lawyers who had worked on Gitmo, brands the unknown ones as the “Al Qaeda 7” and wonders “Why the secrecy” behind them? “Whose values do they share?” The two lawyers whose identities were already public—Principal Deputy Solicitor General Neal Katyal and an official in the department’s National Security Division named Jennifer Daskal—saw individual articles blasting them. Citing their service, The New York Post asked in a January editorial, “Whose side is the Justice Department on: America’s—or the terrorists’?” When the latest video appeared, I typed out a simple statement and began circulating it among colleagues for signatures.

I am a peculiar choice to organize what The New York Times later called “a Who’s Who of former Republican administration officials and conservative legal figures”—not being a former GOP official, a conservative, or even a lawyer. I occupy a strange place in the current debate over law and terror, sympathetic to important arguments made by both right and left. I have fiercely criticized both the Bush administration’s counterterrorism policies and the Obama administration’s—and fiercely defended both as well.

Yet as the attacks mounted, I wondered whether centrist and conservative lawyers, some of whom had suffered similar attacks themselves, would take a strong stand in defense of the Obama Justice Department lawyers. The answer, it turns out, was as encouraging as the attacks themselves were dispiriting. These lawyers responded with an outpouring of enthusiasm, resulting in a powerful rebuke to the political operatives who had launched the attacks.

Neal Katyal came under fire for having represented Salim Hamdan, Osama Bin Laden’s driver, in a challenge to the Bush administration’s original system of trying detainees in military commissions—a challenge that ultimately resulted in a landmark Supreme Court decision striking down the system in the absence of congressional authorization. “It’s just insane,” The New York Post huffed, “that a lawyer who defended Osama bin Laden‘s driver and bodyguard—and who sought constitutional rights for terrorists—could be one of the Obama administration’s top legal officials.”

Katyal, who is a good friend whom I first met back when he was still in law school, is a perfectly absurd target for conservative slings and arrows. Far from a conventional liberal, he has been one of the few truly distinctive voices in what has become a sterile and ideologically predictable debate over counterterrorism in the years since September 11. (Disclosure: Katyal also once collaborated with me on a project on the statutory law of counterterrorism jointly undertaken by the Georgetown University Law Center, where he then taught, the Brookings Institution, and the Hoover Institution.)

Katyal’s principal interest was not in defending Hamdan but in establishing the principle that the executive branch could not set up military commissions without going to Congress. In the course of the Hamdan case, however, he and his co-counsel had a duty to minimize their client’s role in Al Qaeda—though Katyal himself focused almost exclusively on the legal challenge, not on the factual defense. One might have wished on Katyal’s behalf that his client had been as pure as the driven snow—Hamdan was accused not merely of being a driver but of ferrying missiles as well—but angels don’t tend to end up in front of military commissions, and the test case for the system was destined to have some ugly facts that counsel would have to downplay or contest. To have done otherwise would have been unethical.

Unlike many people who got involved in detainee representations, Katyal never took the view that the Bush administration’s counterterrorism positions in general were lawless or inappropriate. He never challenged Hamdan’s detention, for example, only the system by which the Bush administration meant to try him for war crimes. In fact, he publicly resisted the early arguments that the courts should assume habeas jurisdiction over Guantanamo—arguing merely that they should preserve jurisdiction over challenges to the tribunals there. He later made common cause with scholars like Jack Goldsmith (and me) in arguing for a national security court to supervise detentions, and he vigorously defended the propriety of detaining enemy fighters outside of the criminal justice system—drawing the ire of many on the left in the process. Since going into government, to the surprise of nobody who knows him well, he has aggressively defended the current and former administrations’ resistance to the extension of habeas jurisdiction beyond Guantanamo to other military detentions overseas.

Ironically, given the suggestions that his current work may involve conflicts of interest, Katyal on arriving at the department voluntarily recused himself from all matters related to Guantanamo. The real problem, therefore, is not that he is pursuing any illicit agenda, but that his diverse and open mind is walled off from some of the harder problems the administration is confronting.

What’s more, whatever one thinks of the Supreme Court’s decision in Hamdan v. Rumsfeld—and I have my problems with it—it has clearly born salutary fruits, especially, ironically, for believers in military commissions. Before the Hamdan decision, the commissions existed by the authority of the president alone. Congress had no investment in them. Democrats had no investment either. The decision, however, forced the Bush administration to go to Congress and seek authorization for them, and this process of institutionalization has continued under the Obama administration and under a Democratic Congress—which refined the system in an admirably bipartisan process last year. While human rights groups and Europeans still complain about the commissions, the result has been a system that is viable now for administrations of both parties and which the Obama administration means to use in at least some cases. For anyone who believes in the institutionalization of robust counterterrorism authorities in statutory law, the quiet development of the military commission system over the past few years represents at least a tentative success story—and Katyal played a huge role in catalyzing that process.

Daskal presents a more complicated case. A former attorney for Human Rights Watch, she spent years as an advocate for an organization with positions no administration (of either party) would likely adopt. Daskal represented the positions of her group honorably and aggressively and thus has a long history of statements on detainee matters at which anyone who favors strong counterterrorism authorities might reasonably balk—against military commissions and against preventive detention without charge, for example. When she served in that role, she and I were often friendly sparring partners in public and private events, at which she would cast my views as threats to liberty and I would cast hers as maladaptive and fantastical dreaming. I’ll freely confess that when I first heard she was going to the department, I wondered about it.

Then I grew up. Even if Daskal believes every word she ever said as a Human Rights Watch lawyer, so what? The department’s National Security Division is no hotbed of human rights activism; it’s a place that takes national security extremely seriously. Having a diversity of voices in such a place is a healthy thing, not a problem.

More importantly, the relevant question is not what Daskal believes but whether she—or anyone else, for that matter—can put aside her own beliefs and represent the interests of her new client. Government lawyers, like private ones, face the problem routinely of aiding in the defense and development of positions in whose correctness they don’t believe. They have an obligation to put aside their own views and act in the interests of their clients in such situations, whether those situations involve the defense of campaign finance laws by Republican lawyers like former Solicitor General Ted Olson or the seeking of the death penalty by capital punishment opponents like Eric Holder. It is a simple matter of professionalism, and I have no reason to doubt that Daskal is a professional. Neither, other than rank prejudice, do the people who are attacking her.

The statement I tapped out made three basic points: that the attacks were unfair to the individuals in question; that the defense of detainees is an important function in any imaginable set of detention policies; and that the Justice Department benefits from a diversity of experience and philosophical points of view in any administration.

The overwhelming response from centrists and conservatives would have been more overwhelming still had the statement not leaked before I was ready to release it, thus forcing me to let it go early. Still, it included a large number of moderate, conservative, and very conservative luminaries of the bar who work in this area—many of them members of the prior administration, and all of them wanting to have the debate over law and terrorism on a civilized basis; that is, on the merits of difficult issues. 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 during the Bush administration were, of course, a somewhat different animal. They involved criticisms of people’s conduct—or in a few instances their imagined conduct—in office. They took place against the background of an administration whose lawyers had taken extraordinarily aggressive positions, sometimes so aggressive that subsequently other officials in the same administration would not stand behind the work product. To many Bush critics, such differences will seem decisive. The allegations during the last administration were about law-breaking, they will argue, not about the tarnishing of people based on honorable client representations. On the one side are a group of professionals who stood up for the law; on the other are people who undermined their profession by trying to help a client evade the law. End of story.

I beg to differ. 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.

What’s more, even if one were to concede that some of the worst of the lawyering was criminal, the aura of villainy still swept well beyond those who had pushed the dramatic legal theories to people who were, like those now under attack, honorable professionals trying to give legal advice and represent government clients in good faith. It extended to career CIA lawyers whom field operatives were relying on to keep out of trouble. It extended to people who had worked hard within the administration to ameliorate policies that they then also had to defend in public.

And it extended to people like William J. Haynes II, the then-general counsel of the Pentagon, whose name is forever sullied in countless books, magazine articles, op-eds, and press releases for recommending the approval of coercive interrogation techniques at Guantanamo. Haynes, like Katyal, is a friend, someone about whom I do not pretend to be neutral. But it seems to me that his professionalism warranted a defense it never got. Haynes’s long tenure at the Defense Department was a complicated affair. He made mistakes, mistakes I probably would have made too had I been in his shoes. He also behaved very admirably at important junctures.

The memo for which he has been pilloried is also the reason that the military, unlike the CIA, never waterboarded anybody. Haynes recommended approval of certain modestly coercive techniques—the use of which later spun out of control—but he drew the line at several highly-coercive techniques, waterboarding included. Though they might be legal, he wrote, the military was trained in a tradition of restraint and shouldn’t use them. In other words, he behaved exactly the way the Left often criticizes the CIA for not behaving; even in a crisis setting, he refused to let the criminal law define military interrogation policy. Why is that fact not even part of the conversation about him?

Another example was Haynes’s reaction when then-OLC chief Jack Goldsmith later withdrew the key Justice Department legal opinion on which he had based some of his interrogation judgments. As Goldsmith later wrote, he knew the move would be “painful” for Haynes and he feared it would “weaken him within the department and harm his reputation.” Yet in Goldsmith’s account, Haynes responded altogether admirably. “The conversation lasted less than five minutes,” Goldsmith recalls in his book. “Haynes never pushed back, he and I never spoke at length about the issue again, and he never told me how he implemented the withdrawal within the Defense Department. I later learned, however, that he acted promptly on my request.”

Author

Yet such facts are lost or distorted in much of the journalism and polemic that surrounds these issues. In Haynes’s case, as with some others, this is largely because he has not sought to distance himself from other officials who made different, more aggressive calls or to defend himself in the public arena by portraying himself as a moderating force against the monstrousness of others. In other cases, it’s because some facts were just too juicy to check, and if you say them three times they become true in any event.

Even people who spent their time in government actively seeking to ameliorate the excesses of Bush administration policy came under attack. Goldsmith himself left Justice after pulling the interrogation memos and precipitating a crisis in the administration over warrantless surveillance—only to find his appointment at the Harvard Law School opposed by some colleagues on the grounds that he was allegedly complicit in torture. They didn’t wait to know the facts.

Or take former Solicitor General Paul Clement. His office had frequently pushed the executive branch towards greater moderation in counterterrorism policies, using the threat of Supreme Court setbacks to make policymakers think about detainee access to counsel, for example, and the end-game for long-term military detentions of citizens. None of that prevented people from falsely suggesting that he lied to the Supreme Court about torture.

Similarly, State Department lawyers and policy makers who fought to make U.S. detention policy more defensible in America’s international relations emerged from government to find themselves accused of war crimes.

Even career officials were not immune. A long-serving CIA lawyer friend of mine found himself blasted by a congressional committee and in the blogosphere for a comment he informed the committee he never made. Very few people cared that the comment was an apparent fiction.

And therein lies the conservative anger: 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.

Ironically, one of those who did stand up was Katyal himself, who penned a piece in 2007 with Ted Olson decrying both attacks on the patriotism of defense counsel and “the vilification of government lawyers involved in the war on terror.”

I yield to nobody in defense of Katyal, Daskal, and however many other lawyers there may be at Justice who engaged in honorable advocacy on behalf of a group of people I believe the government should have robust authorities against. But 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?  

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