Terrorist sympathizers inside Department of Justice?

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For the past few months, trouble has been brewing at the Department of Justice as Sen. Chuck Grassley (R-Iowa) has doggedly pursued the names of DOJ lawyers who, prior to accepting positions at Justice, either defended or wrote briefs in support of terrorist detainees.

While Attorney General Eric Holder has confirmed that at least nine of his lawyers did, indeed, represent or file amicus briefs before the Court in support of the legal positions of accused terrorist before coming to work at DOJ, Holder is refusing to provide all but two of the names of those attorneys in clear appreciation of the witch hunt that is about to erupt.

And erupt it will.

Today, Liz Cheney’s neo-conservative group ‘Keep America Safe’, has put up a television ad referring to the unnamed Justice Dept. lawyers as the “Al-Qaeda Seven.”

So, should these lawyers be employed by the DOJ after having been so closely associated with the alleged bad guys?

Not according to David Davenport of the conservative Hoover Institute. In an op-ed piece published yesterday in the San Francisco Gate, Davenport writes -

Why is this a problem? Let me count the ways.
First are actual and perceived conflicts of interest, which attorneys are always obligated to avoid. The problem is not that they represented detainees – everyone deserves a defense – but that they are now on the other side. When this happens, attorneys must recuse themselves and avoid handling, or ideally even advising on, the matter. Unfortunately Holder’s incomplete response still didn’t clarify the role of these nine attorneys in Justice Department terror policies and prosecutions.
Second is the appearance of bias or an agenda, that the hens have taken over what is supposed to be the foxes’ den. The Department of Justice is supposed to be prosecuting terrorists, not coddling them. What are we to think if the organized crime unit brings in nine mob lawyers? At least one of these nine was with a human rights advocacy group and has no prosecutorial experience. For an administration that preaches pragmatism and not ideology, it’s at least a question mark, if not a black mark.
Via SF Gate

Nonsense.

First, there is no such conflict, ethical or otherwise, that would require recusal on the part of these attorneys from a DOJ prosecution of terrorists.

Attorneys have a responsibility to avoid conflicts when the interests of their clients, past or present, collide. Thus, if a lawyer who represents a particular employer and also represents that employer’s CEO, presently or in the past, finds that the two clients have come to blows, the lawyer would have to sit it out.

Were the DOJ to pursue a case against the specific client represented by one of these Justice Department attorneys in the past, that would disqualify the lawyer. With respect to those attorneys who may have written briefs in support of a legal position that represents the position of a defendant, nothing would disqualify them, even with respect to prosecuting the defendant on whose behalf they filed a brief in support.

But none of these conflict of interest rules are even at issue. Each of the clients previously represented have already had their cases resolved.

There is certainly no ethical requirement that prohibits a criminal defense attorney from crossing over and becoming a prosecutor. And as the ranks of defense attorneys are packed with ex-prosecutors, there is obviously no such conflict when going in the other direction.

With respect to Davenport’s problem with  the appearance of bias or agenda, once again I would have to say – nonsense.

As an attorney, much of my clientele over the years has come from people who originally met me on the other side of a legal dispute. After I beat them, it occurred to them that they might be better off with the lawyer who whipped them rather than continuing to employ the lawyer who allowed them to be whipped. Next thing you know, clients who were once opponents hire me to represent them in future matters that do not involve the client I represented in the first instance.

If the DOJ wants legal experts to prosecute terrorists, where better to look for them than among the ranks of those who defended alleged terrorists and did so successfully?

And why were they successful? Because the attorneys in question were pursuing the rule of law- a fact borne out by the fact that these attorneys won their cases before the United States Supreme Court.

This is yet another example of conservatives getting confused over their own ideological beliefs. After years of being constitutional strict constructionists, suddenly these people are attacking the very lawyers who have sought to uphold the rule of law as established by the Constitution  - and have done so successfully.

This is not my subjective opinion. This is the opinion of the United States Supreme Court as expressed in Hamden v. Rumsfeld and Boumediene v. Bush.

To pretend that, somehow, these attorneys are terrorists sympathizers because they took up the defense of an accused terrorist is to complete obliterate the function of attorneys who, I would remind you, are first and foremost officers of the court and obligated to defend their clients to the full extent of the law. An attorney’s role is not to sympathize with a defendant in a criminal matter – an attorney’s job is to defend the rights of that client. That is how our justice system works.

Making matters all the worse are the McCarthyite tactics now being employed, tactics that mimic those used during one of America’s most unfortunate and embarrassing corruptions of our constitutional rights.

The Investors Business Daily headlined their op-ed on the subject, “DOJ:Department of Jidad?”  The American Spectator calls the lawyers ‘potential terrorists abettors.’ Certainly, Liz Cheney’s referral to DOJ lawyers as the ‘Al Qaeda Seven’ is the most offensive, particularly when one considers that the cases represented by the two DOJ lawyers that have been named arose out of Cheney’s father’s pursuit of unconstitutional and illegal policies when he was the Vice President of the United States – or so said the Roberts Supreme Court.

Clearly, this is the stuff of great political rhetoric just as it was when McCarthy bellowed that the State Department was infected with Communists. Calling Justice lawyers the “Al Qaeda Seven’ will stir the passions throughout the nation just as passions were stirred by the House Un-American Activities investigations, passions that led to the destruction of many innocent people.

Are we really going to do this again?  Are we really going to allow this behavior to once again rear its ugly head to defeat everything that this country stands for?

This is not about ideology and don’t allow yourself to be fooled into believing that it is. I don’t care where you sit on the ideological spectrum – this behavior is a direct assault on American principles. We learned that after falling for it during the McCarthy era.

No, this is about those who have the courage to defend our system – even as we are under attack by a brutal enemy that means us great harm – and those who are so terrified that they would toss the most fundamental of American law and principle overboard as a result of their fear.

The DOJ attorneys, no matter who they might be, did their job as lawyers. In the process of doing that job, they gained an expertise that they now are making available to us – and I suspect at salaries that come nowhere near what they earned in private practice. That kind of behavior does not make them terrorists sympathizers, it makes them patriots.

If Liz Cheney and friends have some evidence that these people have ill intentions, by all means let us all see it. If the evidence reveals that a lawyer is, indeed, a terrorist sympathizer acting inside the DOJ, I’ll be among the first to join in the hunt for their heads.

Absent such evidence, calling these lawyers terrorist sympathizers simply because they defended the rights of the accused in furtherance of our justice system, is nothing short of disgusting.

Please don’t fall for it. It’s not who we are and it certainly is not who we should aspire to become.

(Katyal) was a very talented and dedicated attorney – he was the perfect choice for his position as deputy Solicitor General. To try to impugn his character or imply he’s part of the ‘Al Qaeda Nine’ or whatever is just outrageous.”

Via Politico