Targeting Justice Department lawyers for work in terrorism cases is misdirected

Friday, March 5, 2010

THE VIDEO opens with an image of Eric H. Holder Jr., as ominous music plays in the background. Soon a headline reading "DOJ: Department of Jihad?" flashes on-screen as the narrator delivers the text in a conspiratorial tone: "So who did President Obama's Attorney General Eric Holder hire? [A]ttorneys who represented or advocated for terrorist detainees. Who are these government officials? . . . Whose values do they share? Tell Eric Holder Americans have a right to know the identities of the al Qaeda 7."

A spokesman for Keep America Safe, the organization that produced the video, argues that it is interested only in "transparency" and that the "American people have a right to know whether lawyers who used to represent terrorists, including advocating for their immediate release, are now working on detainee issues inside the Department of Justice."

Yet patently the video is far more than a call for transparency. It is an effort to smear the Obama administration and the reputations of Justice Department lawyers who, before joining the administration, acted in the best traditions of this country by volunteering to take on the cases of suspected terrorists. They now find themselves the target of a video demanding that they be identified, as if they had committed a crime or needed to be exposed for subverting national security.

In a less inflammatory way, Sen. Charles E. Grassley (R-Iowa) and Rep. Frank R. Wolf (R-Va.) have for some time been asking the Justice Department to provide information about its lawyers who worked on detainee matters before joining the administration and about those lawyers' current responsibilities. This strikes us as a legitimate inquiry -- to a point. It is important that government lawyers not work on matters directly related to their former clients. This is true whether the former clients are corporations, individuals accused of fraud or those accused of terrorist acts. But the lawmakers go too far when they argue that any lawyer who advocated on behalf of detainee rights in private practice should be barred from involvement in all administration matters involving terrorism or detention issues. This is akin to arguing that a Justice Department lawyer must recuse himself from all tax prosecutions because he once defended someone against a tax charge.

It is important to remember that no less an authority than the Supreme Court ruled that those held at the U.S. Naval Base at Guantanamo Bay, Cuba, must be allowed to challenge their detentions in a U.S. court. It is exceedingly difficult to exercise that right meaningfully without the help of a lawyer. It is also worth remembering that the Bush administration wanted to try some Guantanamo detainees in military commissions -- a forum in which a defendant is guaranteed legal representation. Even so, it took courage for attorneys to stand up in the midst of understandable societal rage to protect the rights of those accused of terrorism. Advocates knew that ignorance and fear would too often cloud reason. They knew that this hysteria made their work on these cases all the more important. The video from Keep America Safe proves they were right.

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