Revisiting the DOJ Guantanamo Lawyers

A few posts back, we reviewed some of the Obama appointees in the Department of Justice Civil Rights Division. There has also been a public debate about some of the DOJ appointees in the Division which will be charged with making the decisions about detainees at the Guantanamo facilities. There's little to be done about those already in place, but why is the Holder Justice Department so reticent to release information about those lawyers?

We've discussed the concept that the President ought to be allowed to have his appointees confirmed, but that there are limits to that political rule of thumb. As a conservative and retired attorney, I also explained why a lawyer generally ought not to be judged by the makeup of his clients. Several of the DOJ lawyers previously represented Guantanamo detainees, and I argued that this alone should not be a reason for delving into the past of those lawyers who are now in the DOJ. Having said all that, I have altered my opinion of the alleged "witch-hunt" against these DOJ lawyers. If their prior representation of the Gitmo detainees was mere advocacy, why is the Justice Department stonewalling on questions being asked about them?

As more information keeps leaking out, the story begins to change from mere representation to active pursuit of terrorist defendants chosen by some of those DOJ lawyers back when they were in private practice. When I first went into practice, an attorney could be disciplined for seeking out the particular business of a particular client, no matter how lofty the alleged cause or how noble the defendant. Bar rules have been relaxed so much over the years that such solicitation is not only allowed, but actively encouraged. Standing alone, then, the solicitation of terrorist clients at Guantanamo might raise a few patriotic eyebrows, but it's not forbidden.

Therefore, if it is valid to look into the credentials of lawyers in the DOJ who have represented terrorists in the past, it is more important to find out why they did it, and under what circumstances. As a followup question, there is the issue of just how ethical they were during the time they represented the detainees. Those questions are being raised, and some DOJ lawyers are coming up seriously wanting.

It's not unfair to look first at the potential defendants. Andrew McCarthy, a former federal prosecutor and currently a writer for National Review describes them as follows: "They are anti-American, anti-Western, anti-capitalist, anti-individual liberty, pro-totalitarian, pro-collectivist and hold that American interventions in the Middle East and elsewhere, especially our military interventions, are exploitations of the Muslim world aimed at robbing its natural resources and spreading Western principles that are anathema to the indigenous culture." Anyone assigned to represent such people is doing a job (for most of us, an unpleasant job). But that doesn't explain lawyers who actively seek out such clients. Nor does it include leftist cause-chasers who represented domestic terrorists such as William Ayers and Bernadette Dohrn (pals of Obama's).

Historically, America hasn't had much experience with radical lawyers representing foreign terrorists. But there is a similar pattern unrelated to terrorists which we have known about for many decades. We call them "mob lawyers." They don't just represent major criminal enterprises. They profit heavily from them, and in many instances are part of the very criminal enterprise they purport to be "merely defending." There seems to be a parallel emerging among the DOJ Obama/Holder appointees as to terrorists. Several of the lawyers (and some of their firms) said "Aha! There's a cause after our own hearts. Let's pack up those bags, grab our briefcases, and demand to be allowed to enter Guantanamo forthwith to represent those helpless freedom fighters against the persecution of the Bush administration lawyers." That's more than mere advocacy.

Before moving on to specifics, it's important to point out a couple of relevant facts. First, in all of American history, until we were greeted by the post-911 terrorists, nobody in the legal profession believed that persons captured on a battlefield had any rights beyond humane treatment as prisoners of war--until the war was over. In a strange lapse of judgment, the Supreme Court held for the very first time that such prisoners had the uniquely Anglo-American right to habeas corpus. Still, it only allowed for the detainees to demand a simple statement of the reason for their detention. If the government could show that the detainee was an armed combatant or allied with armed combatants on a foreign battlefield, that was that. Have a nice stay, we'll leave the lights on.

Which leads to the second point. If the government was unable to establish such a basis for the detention, or more importantly, if the detainee was charged as a terrorist, he was immediately entitled to defense counsel, as determined by the detaining authority, in a military tribunal. In other words, we don't allow people charged with crimes against humanity to go unrepresented in court. But to listen to the leftists, best represented by some of the lawyers now safely ensconced in the Obama/Holder Justice Department, those mass murderers would have been charged, tried and convicted without the assistance of able and competent counsel. Aw, hooey.

Those, like Liz Cheney, who are raising the alarm about some of the DOJ lawyers may or may not have purely political motives for questioning the bona fides of the DOJ lawyers who formerly represented terrorist detainees. But a cursory view of some of those attorneys has caused me to stop worrying about her motives and start worrying a lot more about the lawyers who will theoretically be prosecuting terrorists in the future.

Let's start with the leftist Center for Constitutional Rights. This group seeks out the most radical of lawyers in the big, well-funded liberal law firms to take on cases which stand peculiarly for changing America's long-established and long agree-upon rule of law and turn the Constitution on its head. The pickings were very good. Meet current Deputy Solicitor General Neal Katyal. As chief counsel for Al Qaeda kingpin Salim Hamdan, Katyal pulled out all the stops to convince the court that Hamdan was a low-ranking nonentity who was merely caught up in an overzealous military action. Never mind that Katyal knew (or had reason to know) that Hamdan was Osama bin Laden's personal driver and close confidant, and that Hamdan had surface-to-air missiles and anti-personnel IEDs under his personal control when captured.

The result was Hamdan v. Rumsfeld 548 U.S. 557 (2006). For the first time ever, a prisoner of war was granted habeas corpus to challenge the basis of his incarceration. It didn't set Hamdan free, and after ruling that the Rumsfeld/Bush military tribunals had no Congressional authorization, the Court determined that sufficient grounds were found for his incarceration, but that until Congress passed enabling legislation, he could not be tried by the then-constituted military tribunals. Congress promptly passed the enabling legislation.

Still, Katyal is no bomb-throwing radical. He is actually largely pro-American, and though he is proposing special treatment for the Al Qaeda terrorists, what he has proposed is not at all outrageous. He wishes to establish a comprehensive system of preventive detention under the auspices of a national security court. I consider it to be another unneeded category of "prisoner of war," but the idea isn't entirely crazy. My objection to Katyal is that his rush to Guantanamo was unseemly, particularly since Hamdan was provided with able and competent counsel already. More importantly, I think Katyal's fairness is not consistent with his support for many of his fellows in DOJ who don't take such a favorable view of America and its courts. He was also far too enthusiastic about A.G. Holder's decision to start trying terrorists in civilian courts as if they were common criminals.

Holder tapped one of those radicals for a post at DOJ. Jennifer Daskal is now a prosecutor in the DOJ National Security Division. The idea of putting the fox in charge of the henhouse comes immediately to mind. Aside from her total lack of experience as a prosecutor at any level, Daskal earlier campaigned actively for the United Nations Human Rights Committee to condemn America for its waging of what she called "the so-called war on terrorism." She has written multiple treatises on how our "cloak of federalism" allegedly allows states to skirt international treaties by prosecuting terrorists on state or local charges which are sustainable on grounds other than the war on terrorism. She puts all terrorists and domestic violent criminals in the same category as "oppressed victims of an unfair legal system which puts them in 'supermax' prisons."

Daskal actively advocated for Al Qaeda agent Omar Khadr, who at age sixteen murdered an American soldier on the battlefield while the soldier was attempting to assist civilians in the area. Needless to say, Daskal's heart bled for the poor youthful offender. She also attempted to become an intervener in the Khalid Sheikh Mohammed case, claiming that the very-talkative terrorist was coerced into his confession by torture. After joining the DOJ, Daskal continued to advocate Mohammed's cause, and were it not for the angry outcry from the citizens of New York City, might have succeeded in getting him tried in a civilian court while suppressing all evidence obtained in the confession.

We've also had some close calls, and it may not be over yet. One attorney whose name was bandied about at DOJ for a post in the anti-terrorism unit is Julia Tarver Mason, a partner at Paul, Weiss, Rifkind, Wharton & Garrison. Early in the gold rush to Guantanamo, Mason and the firm represented eight separate Guantanamo detainees. The eight, plus four more detainees, had received attorney/client confidential legal mail from the firm. Such correspondence must contain only exchanges between the detainees and their lawyers regarding their legal cases, and must not discuss any details of the cases of any other detainees. Many of the detainees are not very bright, so at least one of them left the Paul, Weiss envelopes and contents out in his cell in plain view.

And what was in those mailings? A brochure prepared by Amnesty International, written in Arabic (which Mason doesn't speak or read), showing America as waging a campaign of torture against Muslims around the globe. It said: "One thread that runs through many of the testimonies from prisons in Afghanistan and Iraq, and from Guantanamo is that of anti-Arab, anti-Islamic, and other racist abuse." Not exactly related to the specific detainees in question, nor particularly related to anything having to do with attorney/client privilege. Detainee Majeed Abdullah Al Joudi wasn't even coy when asked where the brochure came from. "I got it in the mail from my lawyer."

The action resulted in an investigation after which Guantanamo Major General Jay W. Hood expelled the attorneys from Guantanamo. That produced more habeas corpus petitions than anyone could have previously imagined. But the ultimate rule became that attorneys representing terrorists in the future must be carefully screened for national security purposes, and their activities monitored (not their conversations with the detainees).

During Paul, Weiss's massive legal attack on the Bush DOJ and America, suspicious activity did not cease. One lawyer was caught hand-drawing a map of a detention camp's layout, complete with guard towers and how to avoid them, and another attorney sending messages of support for their cause to detainees who were not his clients. Some lawyers were taking daily updated reports from the internet and passing them on to their clients and non-client detainees on IED attacks in Iraq while American soldiers were being blown up on a daily basis by just such IEDs.

When the tough rules for lawyers were relaxed in 2006, Mason and her team resumed their field trips to Guantanamo. At that time, three lawyers representing Khalid Sheikh Mohammed and his co-conspirators showed them photos of covert CIA officers, allegedly to find out if any of them were the operatives who had obtained information from them. The photos were then passed about willy-nilly to any defense attorney for detainees who wanted to see them. None of the names of these lawyers have been released, but it is not too hard to see why many reasonable people would want to know if any of the current DOJ lawyers or potential attorneys are among them.

The unnamed attorneys have come to be known as the "Al Qaeda 7" (some have even suggested there ought to be a "Notorious 9,") and A.G. Holder has absolutely refused to acknowledge if any of his DOJ attorneys are on that list, and if so, why he won't simply clear their names by answering "yes" or "no," and naming those for whom the answer is "yes." This could all end up being a tempest in a teapot. But once again, the Obama/Holder arrogant belief in their own righteousness, and dismissal of the legitimate concerns of the American people create a situation of extreme distrust. And right now, I want to know that my federal prosecutors are dedicated to serious pursuit of convictions for terrorist murderers.