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Blowing Smoke

9:58 AM, Mar 9, 2010 • By WILLIAM KRISTOL
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I'm not a lawyer (though a few of my best friends are). But I gather there's an old legal dictum that goes: If you can't argue the facts, argue the law. If you can't argue the law, argue the facts. If you can't argue the law or the facts, blow smoke.

Blowing Smoke

If you want to see some really high-class smoke being blown, it's worth taking a look at the recent statement signed by a bunch of Republican lawyers defending liberal lawyers now working at the Justice Department who'd previously represented or advocated for terrorist detainees. Nameless straw men (including me) and women (Liz Cheney) are subject to name-calling--"shameful," "unjust," and "destructive" appear in the first paragraph alone. In all three paragraphs of the lawyers' letter, highfalutin generalities are generally and highfalutinly invoked. The self-esteem and self-importance of lawyers are much in evidence. The only thing missing is an actual argument.

Here's the first paragraph: "The past several days have seen a shameful series of attacks on attorneys in the Department of Justice who, in previous legal practice, either represented Guantanamo detainees or advocated for changes to detention policy. As attorneys, former officials, and policy specialists who have worked on detention issues, we consider these attacks both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications."

Okay, it's an introductory paragraph, so one doesn't expect much in the way of facts. But the introduction might have noted what fact precipitated the angry statements from Republican senators and the now-famous Internet ad from Keep America Safe, on whose board I sit and which Liz Cheney chairs. That fact was the refusal of Eric Holder's Justice Department to identify the lawyers he's employed who had done work on behalf of terrorist detainees, and to say whether they were working on detainee and war on terror issues at the Department. In fact, these names came out shortly after the ad was released, and the Justice Department grudgingly confirmed them--though still refusing to specify what the attorneys were working on.

But one wouldn't know from the lawyers' letter that the question of Justice Department transparency was even at issue. Do the lawyers believe Holder was right to resist releasing this information? They don't say. Yet this was the main practical issue at stake.

Here's paragraph two:

"The American tradition of zealous representation of unpopular clients is at least as old as John Adams's representation of the British soldiers charged in the Boston massacre. People come to serve in the Justice Department with a diverse array of prior private clients; that is one of the department's strengths. The War on Terror raised any number of novel legal questions, which collectively created a significant role in judicial, executive and legislative forums alike for honorable advocacy on behalf of detainees. In several key cases, detainee advocates prevailed before the Supreme Court. To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit."

Now in fact almost no one has suggested detainee lawyers should never be employed anywhere at Justice. The question was and is whether they should work on detainee issues. And no one I know of is demanding "a uniformity of background and view in government service." I for one would be thrilled if the Obama administration had more diversity of background and views among its lawyers. It would be great if Holder's Justice Department had hired attorneys who had defended patriots like the CIA interrogators and Bush administration lawyers like Steven Bradbury, Jay Bybee and John Yoo from scurrilous attacks, for example.

And here's the final paragraph:

"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."

I don't think there's much chance we'll lack an "aggressive defense bar" in this country, given the readiness of most of the big law firms to devote time, resources and prestige to fashionable and politically correct legal causes. Whether the war on terror defense bar should be honored in general for their role over the past several years, which included lots of delegitimizing of various institutions of the U.S. government and lots of pressure to get detainees released, some of whom have returned to the terror battlefield, is another question. It's one that is a legitimate subject for debate, as are the policy and personnel choices of Eric Holder's Justice Department.

And we're going to continue debating those choices.

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