A shameful attack on the U.S. legal system

By Walter Dellinger
Friday, March 5, 2010

It never occurred to me on the day that Defense Department lawyer Rebecca Snyder and Lt. Cmdr. William Kuebler of the Navy appeared in my law firm's offices to ask for our assistance in carrying out their duties as military defense lawyers that the young lawyer who worked with me on that matter would be publicly attacked for having done so. And yet this week that lawyer and eight other Justice Department attorneys have been attacked in a video released by a group called Keep America Safe (whose board members include William Kristol and Elizabeth Cheney) for having provided legal assistance to detainees before joining the department. The video questions their loyalty to the United States, asking: "DOJ: Department of Jihad?" and "Who are these government officials? . . . Whose values do they share?"

Here, in brief, is the story of one of those lawyers.

In June 2007, I was at a federal judicial conference when I received an urgent message to call the Defense Department. The caller was Lt. Cmdr. Kuebler, a uniformed Navy officer who had been detailed to the Office of Military Commissions. As part of his military duties, Kuebler had been assigned to represent Omar Khadr, a Guantanamo detainee who was to be tried before a military commission. Kuebler told me that the U.S. Supreme Court had agreed that day to review the case of another detainee who had been a part of the same lower court proceeding as Khadr. Because Kuebler's client had not sought review at the Supreme Court, this situation raised some complex questions of court practice with which Kuebler was unfamiliar. Kuebler's military superior suggested he call me and ask whether I could assist him in analyzing the applicable Supreme Court rule.

It was a Friday night. I called Karl Thompson, a lawyer at my firm who had previously been a Supreme Court law clerk, and asked whether he could look into the question over the weekend. I told Thompson that the military lawyers assigned to these cases had a very burdensome workload and that it seemed that Kuebler could really use our help. Even though Thompson was extremely busy with other work at the firm, he said he would somehow find time for this as well.

Over the next several months, Thompson (in addition to his other firm work) provided assistance to Kuebler and his Defense Department colleague in their briefing before the Supreme Court and, in Khadr's case, the lower courts. Khadr's case raises important questions, including the legal status of juvenile detainees (he was 15 years old at the time of capture). In 2009, Thompson left our firm to join the Office of Legal Counsel at the Justice Department.

Thompson's assistance to the military officers who had been assigned to Khadr's case seemed to me to be not only part of a lawyer's professional obligation but a small act of patriotism as well. The other Justice Department lawyers named in this week's attack came to provide assistance to detainees in a number of ways, but they all deserve our respect and gratitude for fulfilling the professional obligations of lawyers. This sentiment is widely shared across party and ideological lines by leaders of the bar. As former Solicitor General Ted Olson wrote in response to previous attacks on detainee lawyers, "The ethos of the bar is built on the idea that lawyers will represent both the popular and the unpopular, so that everyone has access to justice. Despite the horrible Sept. 11, 2001, attacks, this is still proudly held as a basic tenet of our profession."

That those in question would have their patriotism, loyalty and values attacked by reputable public figures such as Elizabeth Cheney and journalists such as Kristol is as depressing a public episode as I have witnessed in many years. What has become of our civic life in America? The only word that can do justice to the personal attacks on these fine lawyers -- and on the integrity of our legal system -- is shameful. Shameful.

The writer served as head of the Office of Legal Counsel in the Clinton administration. He is a partner at O'Melveny & Myers.

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