Ted Olson, a former solicitor general under George W. Bush who lost his wife in the September 11 attacks, has become the latest conservative luminary to come out against Liz Cheney's McCarthyite ad, which accuses Justice Department lawyers who did work on behalf of suspected terror detainees of disloyalty.
Olson, though, seems to think that there's an equivalence between say, criticizing John Yoo and Jay Bybee's rubber-stamping of torture and ensuring detainees have due process (via Ben Smith):
"I of course think it’s entirely appropriate for members of the legal profession to have provided legal services to detainees,” Olson told POLITICO. “It is a part of the responsibility of lawyers and in the finest tradition of the profession to represent unpopular persons who are caught up in the criminal justice system or even in the military justice system. I think that people who do so, do so honorably,” said Olson, whose arguments before the Supreme Court helped win the presidency for George W. Bush in 2000.Good for Olson for speaking out against his Republican colleagues, but these things aren't remotely the same. There shouldn't be anything controversial about the fact that you don't forfeit all your rights to due process once you're accused of a crime. Torture, by contrast, is not only controversial but prohibited by statute, and even David Margolis, the Justice Department official who overruled the Office of Professional Responsibility recommendation that Yoo and Bybee face political sanction, agreed that the legal justification for torture reflected "poor judgment." On the matter of whether or not Yoo deliberately gave incorrect legal advice, Margolis said it was a "close question."“But I also think that some of the people being highly critical now of the criticism of the lawyers in the Justice Department, have been completely silent when it came to attacks—vicious attacks—on lawyers in the Department of Justice and the Defense Department who were providing legal assistance and advice to the United States of America during the last administration in connection with the attacks on the United States by terrorists.
“So lawyers should be encouraged to provide legal advice conscientiously to their clients. And that goes for people in the Bush administration and the Obama administration.”
The attorneys who represented suspected terror detainees were trying to uphold the system, not circumvent it. Not all criticism of lawyers is illegitimate, and there's really no equivalence between what Yoo and Bybee did and what the smeared DoJ lawyers did, even as a matter of professional conduct and not ideology. I do think, though, that Olson's response hints at why more Republicans haven't spoken out and why the party as a whole intends to pursue this line of attack: They see it as "payback" for what they view as the illegitimate and bad-faith Democratic criticism during the Bush years.
-- A. Serwer
