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.
Signatories:
Senior Fellow and Research Director in Public Law, The Brookings Institution
Member, Hoover Task Force on National Security and Law
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
Commentary
Op-edStatement on Justice Department Attorney Representation of Guantánamo Detainees
March 8, 2010