Ben Smith has obtained a copy of a letter written by centrist Bookings Scholar Ben Wittes and signed by several conservative lawyers that slams Keep America Safe's smear of several Justice Department lawyers as terrorist sympathizers as "shameful," although they don't cite the group by name. The letter is signed by Peter Keisler, formerly the head of George W. Bush's Civil Division, John Bellinger, former legal adviser to the State Department, Matthew Waxman, former deputy assistant secretary of defense for detainee affairs, Philip Zelikow, former executive director of the 9/11 Commission, as well as David Rivkin and Lee Casey, veterans of the first Bush administration whose public positions put them pretty much in line with Keep America Safe in terms of rejecting civilian courts and supporting "enhanced interrogation techniques." Former Solicitor General Ken Starr has also signed the letter.
The most surprising name on the list though, is Charles "Cully" Stimson, Waxman's predecessor, who resigned from the Bush administration in 2007 after suggesting companies not do business with law firms that represented detainees.
From the statement:
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. Guantanamo 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.
The reason for the backlash is that the attack on the so-called Gitmo Nine or al-Qaeda Seven wasn't just an attack on a handful of liberal lawyers -- it was an attack on the American system of justice, suggesting that certain classes of people aren't entitled to robust legal representation and that those who chose to represent them in order to ensure due process are America's enemies. If anyone can be denied due process, than all of us can be denied due process. The people at KAS for whatever reason, are incapable of looking beyond their political self-interest and are willing to cannibalize the very institutions of American democracy in order to gain political ground against their political targets.
One sign that KAS is starting to feel the pressure over their descent into neo-McCarthyism is that they also seem more and more incapable of owning up to their own behavior. Last week Liz Cheney huffed that the ad, which dubs the attorneys the "al-Qaeda Seven," does not "question anybody's loyalty." Bill Kristol insisted to Smith that his group didn't "attack" the nine lawyers when it suggested that they were sympathetic to terrorists, but merely asked "whether former pro bono lawyers for terrorists should be working on detainee policy for the Justice Department," or as the group's ad put it, the "Department of Jihad." What's remarkable about this statement is that Kristol is still suggesting that these attorneys are sympathetic to terrorists while claiming that he isn't suggesting that at all. After all, what could be otherwise sinister about their representation of detainees that would make them ineligible for public service?
Representing those whom no one else wants to represent, even those who may be your enemies, is in the greatest tradition of the American legal system. It's why the joint group formed by the American Civil Liberties Union and the National Association of Criminal Defense Lawyers to assist in detainees' defense is called the John Adams Project, in honor of the founding father's representation of the British soldiers in the Boston Massacre. American public servants take an oath to protect the Constitution rather than the "people of the United States" precisely because the latter oath would be so easily corrupted. We can see in KAS where the impulse to place security above the law takes us: to a place where no one has any rights at all.
One of the most frightening developments in the aftermath of the September 11 attacks was the shattering of a certain baseline national consensus on certain issues between liberals and conservatives. Prior to September 11, for example, I doubt a substantial number of Americans would have supported the use of torture techniques adapted from methods used by Chinese Communists. The letter gives me hope because it reminds us, whatever our differences, we can agree there are certain things, like the integrity of the American legal system, that are more important than our political rivalries. It is still possible to go too far, to cross a line that makes even those on your side recoil.
At the same time, Smith says that the GOP is unlikely to abandon this line of attack because they see it as politically advantageous, so the conservatives who signed the above letter would seem to be fighting a losing battle for decency within a party that sees no point to having one if votes can be gained otherwise.
-- A. Serwer
