Conservatives raise ruckus over Justice appointees' prior work with detainees

By Carrie Johnson
Washington Post Staff Writer
Thursday, March 4, 2010

Conservatives who are unhappy with the decision to close the prison in Guantanamo Bay, Cuba, have trained their fire on an unusual target: political appointees in the Obama Justice Department who represented detainees earlier in their careers.

Sen. Charles E. Grassley (R-Iowa) has been demanding for months the names of nine appointees who previously advocated for or represented detainees in their private law practices. Grassley has argued that the lawyers' backgrounds could pose "conflicts of interest" and complained that the department had been "nonresponsive" to his requests.

The rhetoric reached new levels this week when Keep America Safe, a group affiliated with Elizabeth Cheney, the daughter of former vice president Richard B. Cheney, released a YouTube video that featured the headline "DOJ: Department of Jihad?" and asked, "Who are these government officials? . . . Whose values do they share?"

The video triggered fierce complaints from political progressives and even some veterans of the George W. Bush years. Critics say the argument fails to consider that government lawyers' portfolios often overlap with their prior practice and that all lawyers are obligated to do free legal work for the poor and others.

In a blog post on the Volokh Conspiracy legal Web site, George Washington University professor Orin S. Kerr, who has worked for GOP lawmakers, likened the video to something that "former Senator Joseph McCarthy would have used . . . if he were alive today."

"Members of Congress made a reasonable request for information about senior DOJ lawyers' past work and possible conflicts, but the video is truly offensive," said former Bush White House lawyer Reginald Brown. "It's beyond a cheap shot to suggest that a lawyer is an al-Qaeda sympathizer because he advocates a detainee's position in the Supreme Court."

None of the nine Justice attorneys are involved in individual prosecution decisions about terrorism suspects, a department official said, and each of them "understands that their client is the United States," Assistant Attorney General Ronald H. Weich wrote in a letter to Grassley last month.

Fox News identified the attorneys on its Web site Tuesday. Justice Department officials confirmed that some of the lawyers represented individual terrorism suspects on a pro bono basis; others signed friend-of-the-court briefs on policy issues, sometimes for conservative legal organizations. They include appointees who work in the offices of the three highest-ranking officials in the department, as well as the Office of Legal Counsel, the Office of the Solicitor General and the civil division.

"Politics has overtaken facts and reality," Justice Department spokesman Matthew Miller said in a statement. "We will not participate in an attempt to drag people's names through the mud for political purposes. . . . Department of Justice attorneys work around the clock to keep this country safe and it is offensive that their patriotism is being questioned."

Democratic political analysts pointed out that high-level Bush administration officials who worked in the Justice Department, the State Department and the White House last year joined law firms that represent terrorism suspects who are challenging their prolonged detention at Guantanamo.

Nonetheless, Rep. Frank R. Wolf (R-Va.) sent a letter to Attorney General Eric H. Holder Jr. on Tuesday asserting that "the decision to allow attorneys who advocated for terrorists held at Guantanamo to craft detainee policy during the war on terror would be akin to allowing attorneys for the Mafia to draft organized crime policy during the 1960s."

Kenneth L. Wainstein, a former U.S. attorney and homeland security adviser in the Bush administration, drew a finer line.

"While it's legitimate for the public to inquire about the past work of DOJ political appointees, we need to recognize that our judicial system cannot function without pro bono counsel, and it doesn't make a lawyer less patriotic just because he or she has represented a criminal or terrorist suspect," Wainstein said.

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