Benjamin Wittes: Obama's Lawyers were Smeared--But Guess What, So were Bush’s
[Benjamin Wittes is a Senior Fellow at the Brookings Institution and a member of the Hoover Institution's Task Force on National Security and Law.]
The attacks on the Justice Department lawyers who had represented Guantanamo detainees angered me for several distinct reasons. They typified a growing culture of incivility in the politics of national security and law that I have always loathed and have spoken against repeatedly. They sought to delegitimize the legal defense of politically unpopular clients and to impose a kind of ideological litmus test on Justice Department service. They were also, at least in part, about friends and professional acquaintances. And they reminded me painfully of other friends during the Bush administration who had been similarly slimed and for whom the bar had failed to stand up.
The criticism had been simmering for some time in newspaper columns and editorials, but it exploded in the public arena with the now-infamous web ad by a group called Keep America Safe. The video, ostensibly about the Justice Department’s unwillingness to release the names of all of the lawyers who had worked on Gitmo, brands the unknown ones as the “Al Qaeda 7” and wonders “Why the secrecy” behind them? “Whose values do they share?” The two lawyers whose identities were already public—Principal Deputy Solicitor General Neal Katyal and an official in the department’s National Security Division named Jennifer Daskal—saw individual articles blasting them. Citing their service, The New York Post asked in a January editorial, “Whose side is the Justice Department on: America's—or the terrorists'?” When the latest video appeared, I typed out a simple statement and began circulating it among colleagues for signatures.
I am a peculiar choice to organize what The New York Times later called “a Who’s Who of former Republican administration officials and conservative legal figures”—not being a former GOP official, a conservative, or even a lawyer. I occupy a strange place in the current debate over law and terror, sympathetic to important arguments made by both right and left. I have fiercely criticized both the Bush administration’s counterterrorism policies and the Obama administration’s—and fiercely defended both as well.
Yet as the attacks mounted, I wondered whether centrist and conservative lawyers, some of whom had suffered similar attacks themselves, would take a strong stand in defense of the Obama Justice Department lawyers. The answer, it turns out, was as encouraging as the attacks themselves were dispiriting. These lawyers responded with an outpouring of enthusiasm, resulting in a powerful rebuke to the political operatives who had launched the attacks.
Neal Katyal came under fire for having represented Salim Hamdan, Osama Bin Laden’s driver, in a challenge to the Bush administration’s original system of trying detainees in military commissions—a challenge that ultimately resulted in a landmark Supreme Court decision striking down the system in the absence of congressional authorization. “It's just insane,” The New York Post huffed, “that a lawyer who defended Osama bin Laden's driver and bodyguard—and who sought constitutional rights for terrorists—could be one of the Obama administration's top legal officials.”
Katyal, who is a good friend whom I first met back when he was still in law school, is a perfectly absurd target for conservative slings and arrows. Far from a conventional liberal, he has been one of the few truly distinctive voices in what has become a sterile and ideologically predictable debate over counterterrorism in the years since September 11. (Disclosure: Katyal also once collaborated with me on a project on the statutory law of counterterrorism jointly undertaken by the Georgetown University Law Center, where he then taught, the Brookings Institution, and the Hoover Institution.)
Katyal’s principal interest was not in defending Hamdan but in establishing the principle that the executive branch could not set up military commissions without going to Congress. In the course of the Hamdan case, however, he and his co-counsel had a duty to minimize their client’s role in Al Qaeda—though Katyal himself focused almost exclusively on the legal challenge, not on the factual defense. One might have wished on Katyal’s behalf that his client had been as pure as the driven snow—Hamdan was accused not merely of being a driver but of ferrying missiles as well—but angels don’t tend to end up in front of military commissions, and the test case for the system was destined to have some ugly facts that counsel would have to downplay or contest. To have done otherwise would have been unethical.
Unlike many people who got involved in detainee representations, Katyal never took the view that the Bush administration’s counterterrorism positions in general were lawless or inappropriate. He never challenged Hamdan’s detention, for example, only the system by which the Bush administration meant to try him for war crimes. In fact, he publicly resisted the early arguments that the courts should assume habeas jurisdiction over Guantanamo—arguing merely that they should preserve jurisdiction over challenges to the tribunals there. He later made common cause with scholars like Jack Goldsmith (and me) in arguing for a national security court to supervise detentions, and he vigorously defended the propriety of detaining enemy fighters outside of the criminal justice system—drawing the ire of many on the left in the process. Since going into government, to the surprise of nobody who knows him well, he has aggressively defended the current and former administrations’ resistance to the extension of habeas jurisdiction beyond Guantanamo to other military detentions overseas.
Ironically, given the suggestions that his current work may involve conflicts of interest, Katyal on arriving at the department voluntarily recused himself from all matters related to Guantanamo. The real problem, therefore, is not that he is pursuing any illicit agenda, but that his diverse and open mind is walled off from some of the harder problems the administration is confronting.
What’s more, whatever one thinks of the Supreme Court’s decision in Hamdan v. Rumsfeld—and I have my problems with it—it has clearly born salutary fruits, especially, ironically, for believers in military commissions. Before the Hamdan decision, the commissions existed by the authority of the president alone. Congress had no investment in them. Democrats had no investment either. The decision, however, forced the Bush administration to go to Congress and seek authorization for them, and this process of institutionalization has continued under the Obama administration and under a Democratic Congress—which refined the system in an admirably bipartisan process last year. While human rights groups and Europeans still complain about the commissions, the result has been a system that is viable now for administrations of both parties and which the Obama administration means to use in at least some cases. For anyone who believes in the institutionalization of robust counterterrorism authorities in statutory law, the quiet development of the military commission system over the past few years represents at least a tentative success story—and Katyal played a huge role in catalyzing that process.
Daskal presents a more complicated case. A former attorney for Human Rights Watch, she spent years as an advocate for an organization with positions no administration (of either party) would likely adopt. Daskal represented the positions of her group honorably and aggressively and thus has a long history of statements on detainee matters at which anyone who favors strong counterterrorism authorities might reasonably balk—against military commissions and against preventive detention without charge, for example. When she served in that role, she and I were often friendly sparring partners in public and private events, at which she would cast my views as threats to liberty and I would cast hers as maladaptive and fantastical dreaming. I’ll freely confess that when I first heard she was going to the department, I wondered about it.
Then I grew up. Even if Daskal believes every word she ever said as a Human Rights Watch lawyer, so what? The department’s National Security Division is no hotbed of human rights activism; it’s a place that takes national security extremely seriously. Having a diversity of voices in such a place is a healthy thing, not a problem.
More importantly, the relevant question is not what Daskal believes but whether she—or anyone else, for that matter—can put aside her own beliefs and represent the interests of her new client. Government lawyers, like private ones, face the problem routinely of aiding in the defense and development of positions in whose correctness they don’t believe. They have an obligation to put aside their own views and act in the interests of their clients in such situations, whether those situations involve the defense of campaign finance laws by Republican lawyers like former Solicitor General Ted Olson or the seeking of the death penalty by capital punishment opponents like Eric Holder. It is a simple matter of professionalism, and I have no reason to doubt that Daskal is a professional. Neither, other than rank prejudice, do the people who are attacking her.
The statement I tapped out made three basic points: that the attacks were unfair to the individuals in question; that the defense of detainees is an important function in any imaginable set of detention policies; and that the Justice Department benefits from a diversity of experience and philosophical points of view in any administration.
The overwhelming response from centrists and conservatives would have been more overwhelming still had the statement not leaked before I was ready to release it, thus forcing me to let it go early. Still, it included a large number of moderate, conservative, and very conservative luminaries of the bar who work in this area—many of them members of the prior administration, and all of them wanting to have the debate over law and terrorism on a civilized basis; that is, on the merits of difficult issues. In talking to people about the statement, however, I heard a recurring complaint from members of the prior administration, one that has in my opinion considerable merit: Our political and philosophical opponents never did this for us when the shoe was on the other foot, people said. Why did nobody stand up for the much-maligned lawyers of the Bush administration?..
Read entire article at New Republic
The attacks on the Justice Department lawyers who had represented Guantanamo detainees angered me for several distinct reasons. They typified a growing culture of incivility in the politics of national security and law that I have always loathed and have spoken against repeatedly. They sought to delegitimize the legal defense of politically unpopular clients and to impose a kind of ideological litmus test on Justice Department service. They were also, at least in part, about friends and professional acquaintances. And they reminded me painfully of other friends during the Bush administration who had been similarly slimed and for whom the bar had failed to stand up.
The criticism had been simmering for some time in newspaper columns and editorials, but it exploded in the public arena with the now-infamous web ad by a group called Keep America Safe. The video, ostensibly about the Justice Department’s unwillingness to release the names of all of the lawyers who had worked on Gitmo, brands the unknown ones as the “Al Qaeda 7” and wonders “Why the secrecy” behind them? “Whose values do they share?” The two lawyers whose identities were already public—Principal Deputy Solicitor General Neal Katyal and an official in the department’s National Security Division named Jennifer Daskal—saw individual articles blasting them. Citing their service, The New York Post asked in a January editorial, “Whose side is the Justice Department on: America's—or the terrorists'?” When the latest video appeared, I typed out a simple statement and began circulating it among colleagues for signatures.
I am a peculiar choice to organize what The New York Times later called “a Who’s Who of former Republican administration officials and conservative legal figures”—not being a former GOP official, a conservative, or even a lawyer. I occupy a strange place in the current debate over law and terror, sympathetic to important arguments made by both right and left. I have fiercely criticized both the Bush administration’s counterterrorism policies and the Obama administration’s—and fiercely defended both as well.
Yet as the attacks mounted, I wondered whether centrist and conservative lawyers, some of whom had suffered similar attacks themselves, would take a strong stand in defense of the Obama Justice Department lawyers. The answer, it turns out, was as encouraging as the attacks themselves were dispiriting. These lawyers responded with an outpouring of enthusiasm, resulting in a powerful rebuke to the political operatives who had launched the attacks.
Neal Katyal came under fire for having represented Salim Hamdan, Osama Bin Laden’s driver, in a challenge to the Bush administration’s original system of trying detainees in military commissions—a challenge that ultimately resulted in a landmark Supreme Court decision striking down the system in the absence of congressional authorization. “It's just insane,” The New York Post huffed, “that a lawyer who defended Osama bin Laden's driver and bodyguard—and who sought constitutional rights for terrorists—could be one of the Obama administration's top legal officials.”
Katyal, who is a good friend whom I first met back when he was still in law school, is a perfectly absurd target for conservative slings and arrows. Far from a conventional liberal, he has been one of the few truly distinctive voices in what has become a sterile and ideologically predictable debate over counterterrorism in the years since September 11. (Disclosure: Katyal also once collaborated with me on a project on the statutory law of counterterrorism jointly undertaken by the Georgetown University Law Center, where he then taught, the Brookings Institution, and the Hoover Institution.)
Katyal’s principal interest was not in defending Hamdan but in establishing the principle that the executive branch could not set up military commissions without going to Congress. In the course of the Hamdan case, however, he and his co-counsel had a duty to minimize their client’s role in Al Qaeda—though Katyal himself focused almost exclusively on the legal challenge, not on the factual defense. One might have wished on Katyal’s behalf that his client had been as pure as the driven snow—Hamdan was accused not merely of being a driver but of ferrying missiles as well—but angels don’t tend to end up in front of military commissions, and the test case for the system was destined to have some ugly facts that counsel would have to downplay or contest. To have done otherwise would have been unethical.
Unlike many people who got involved in detainee representations, Katyal never took the view that the Bush administration’s counterterrorism positions in general were lawless or inappropriate. He never challenged Hamdan’s detention, for example, only the system by which the Bush administration meant to try him for war crimes. In fact, he publicly resisted the early arguments that the courts should assume habeas jurisdiction over Guantanamo—arguing merely that they should preserve jurisdiction over challenges to the tribunals there. He later made common cause with scholars like Jack Goldsmith (and me) in arguing for a national security court to supervise detentions, and he vigorously defended the propriety of detaining enemy fighters outside of the criminal justice system—drawing the ire of many on the left in the process. Since going into government, to the surprise of nobody who knows him well, he has aggressively defended the current and former administrations’ resistance to the extension of habeas jurisdiction beyond Guantanamo to other military detentions overseas.
Ironically, given the suggestions that his current work may involve conflicts of interest, Katyal on arriving at the department voluntarily recused himself from all matters related to Guantanamo. The real problem, therefore, is not that he is pursuing any illicit agenda, but that his diverse and open mind is walled off from some of the harder problems the administration is confronting.
What’s more, whatever one thinks of the Supreme Court’s decision in Hamdan v. Rumsfeld—and I have my problems with it—it has clearly born salutary fruits, especially, ironically, for believers in military commissions. Before the Hamdan decision, the commissions existed by the authority of the president alone. Congress had no investment in them. Democrats had no investment either. The decision, however, forced the Bush administration to go to Congress and seek authorization for them, and this process of institutionalization has continued under the Obama administration and under a Democratic Congress—which refined the system in an admirably bipartisan process last year. While human rights groups and Europeans still complain about the commissions, the result has been a system that is viable now for administrations of both parties and which the Obama administration means to use in at least some cases. For anyone who believes in the institutionalization of robust counterterrorism authorities in statutory law, the quiet development of the military commission system over the past few years represents at least a tentative success story—and Katyal played a huge role in catalyzing that process.
Daskal presents a more complicated case. A former attorney for Human Rights Watch, she spent years as an advocate for an organization with positions no administration (of either party) would likely adopt. Daskal represented the positions of her group honorably and aggressively and thus has a long history of statements on detainee matters at which anyone who favors strong counterterrorism authorities might reasonably balk—against military commissions and against preventive detention without charge, for example. When she served in that role, she and I were often friendly sparring partners in public and private events, at which she would cast my views as threats to liberty and I would cast hers as maladaptive and fantastical dreaming. I’ll freely confess that when I first heard she was going to the department, I wondered about it.
Then I grew up. Even if Daskal believes every word she ever said as a Human Rights Watch lawyer, so what? The department’s National Security Division is no hotbed of human rights activism; it’s a place that takes national security extremely seriously. Having a diversity of voices in such a place is a healthy thing, not a problem.
More importantly, the relevant question is not what Daskal believes but whether she—or anyone else, for that matter—can put aside her own beliefs and represent the interests of her new client. Government lawyers, like private ones, face the problem routinely of aiding in the defense and development of positions in whose correctness they don’t believe. They have an obligation to put aside their own views and act in the interests of their clients in such situations, whether those situations involve the defense of campaign finance laws by Republican lawyers like former Solicitor General Ted Olson or the seeking of the death penalty by capital punishment opponents like Eric Holder. It is a simple matter of professionalism, and I have no reason to doubt that Daskal is a professional. Neither, other than rank prejudice, do the people who are attacking her.
The statement I tapped out made three basic points: that the attacks were unfair to the individuals in question; that the defense of detainees is an important function in any imaginable set of detention policies; and that the Justice Department benefits from a diversity of experience and philosophical points of view in any administration.
The overwhelming response from centrists and conservatives would have been more overwhelming still had the statement not leaked before I was ready to release it, thus forcing me to let it go early. Still, it included a large number of moderate, conservative, and very conservative luminaries of the bar who work in this area—many of them members of the prior administration, and all of them wanting to have the debate over law and terrorism on a civilized basis; that is, on the merits of difficult issues. In talking to people about the statement, however, I heard a recurring complaint from members of the prior administration, one that has in my opinion considerable merit: Our political and philosophical opponents never did this for us when the shoe was on the other foot, people said. Why did nobody stand up for the much-maligned lawyers of the Bush administration?..