Fox continues “shameful” attacks on DOJ lawyers who defended terror suspects

Fox & Friends again attacked the Department of Justice for hiring lawyers who previously represented terror suspects or supported their legal arguments. But as a article has noted, Bush administration lawyers also represented Guantánamo Bay detainees before working for the Justice Department, and several past Bush and Clinton DOJ officials have called these attacks “shameful” and “wrong.”

Fox & Friends attacks DOJ lawyers who have defended terror suspects

Carlson: “It's almost like it was a job requirement to have defended” a terrorist. On the March 5 edition of Fox News' Fox & Friends, co-host Gretchen Carlson said of the Justice Department lawyers, “It's almost like it was a job requirement to have defended a” terrorist. She then asked, “Seriously, when somebody finally exposes this, this is trouble, is it not?”

Kilmeade: “What should we know when nine Department of Justice lawyers ... were involved in advocating for Al Qaeda terrorists?” During the March 5 Fox & Friends, co-host Brian Kilmeade asked guest Andrew McCarthy of National Review Online: “What should we know when nine Department of Justice lawyers are involved -- they're hired right now -- were involved in advocating for Al Qaeda terrorists when they were at Gitmo before they got this job, when President Bush was in the White House.” McCarthy replied, in part: “Well, obviously I think the fact that they voluntarily represented America's enemies is something to be very concerned about if they're now in the position of making counterterrorism policy.”

But as Fox has previously reported, Bush DOJ also hired lawyers who represented terror suspects

March 3 article: “Obama Administration is not the first to hire lawyers who represented or advocated for terror suspects.” In a March 3 article about lawyers currently working for DOJ who previously represented terror suspects or supported their legal arguments, reported that "[t]he Obama Administration is not the first to hire lawyers who represented or advocated for terror suspects." From the article:

A day after a conservative group released a video condemning the Justice Department for refusing to identify seven lawyers who previously represented or advocated for terror suspects, Fox News has uncovered the identities of the seven lawyers.

The names were confirmed by a Justice Department spokesman, who said “politics has overtaken facts and reality” in a tug-of-war over the lawyers' identities.


The Obama Administration is not the first to hire lawyers who represented or advocated for terror suspects.

Pratik Shah, an assistant to the Solicitor General hired by the Bush Administration, was part of the WilmerHale team that put together arguments for the Boumediene v. Bush case.

Trisha Anderson, an adviser in the Justice Department's Office of Legal Counsel who was also hired by the Bush Administration, was previously an attorney at Attorney General Eric Holder's former firm, Covington & Burling, where she helped represent 13 Yemeni detainees.

Varda Hussain, an attorney hired in 2008 with the Justice Department's Civil Rights Division, was an associate with the Washington-based firm Venable when she helped represent three Egyptians being held at Guantanamo Bay.

“Varda has spent over 500 hours in the past year fighting to bring due process to our clients,” a firm newsletter said in 2006.

Former Bush, Clinton officials criticize attacks on DOJ lawyers as “shameful,” “wrong,” “outrageous,” “cheap shots”

Former head of OLC Walter Dellinger slams attacks on DOJ lawyers as “shameful.” In a March 5 Washington Post op-ed, Walter Dellinger, former head of the Office of Legal Counsel during the Clinton administration, wrote that "[t]he only word that can do justice to the personal attacks on these fine lawyers -- and on the integrity of our legal system -- is shameful. Shameful." From Dellinger's op-ed:

It never occurred to me on the day that Defense Department lawyer Rebecca Snyder and Lt. Cmdr. William Kuebler of the Navy appeared in my law firm's offices to ask for our assistance in carrying out their duties as military defense lawyers that the young lawyer who worked with me on that matter would be publicly attacked for having done so. And yet this week that lawyer and eight other Justice Department attorneys have been attacked in a video released by a group called Keep America Safe (whose board members include William Kristol and Elizabeth Cheney) for having provided legal assistance to detainees before joining the department. The video questions their loyalty to the United States, asking: “DOJ: Department of Jihad?” and “Who are these government officials? ... Whose values do they share?”


That those in question would have their patriotism, loyalty and values attacked by reputable public figures such as Elizabeth Cheney and journalists such as Kristol is as depressing a public episode as I have witnessed in many years. What has become of our civic life in America? The only word that can do justice to the personal attacks on these fine lawyers -- and on the integrity of our legal system -- is shameful. Shameful.

Former Bush administration official Peter D. Keisler reportedly says it's “wrong” to attack DOJ lawyers . The New York Times reported on March 4 that former Bush administration official Peter D. Keisler, “who led the Bush administration's courtroom defense against lawsuits filed by Guantanamo detainees is denouncing attacks on Obama administration appointees who previously helped such prisoners challenge their indefinite detention without trial.” The article further stated:

Peter D. Keisler, who was assistant attorney general for the civil division in the Bush administration, said in an interview that it was “wrong” to attack lawyers who volunteered to help such lawsuits before joining the Justice Department.

“There is a longstanding and very honorable tradition of lawyers representing unpopular or controversial clients,” Mr. Keisler said. “The fact that someone has acted within that tradition, as many lawyers, civilian and military, have done with respect to people who are accused of terrorism -- that should never be a basis for suggesting that they are unfit in any way to serve in the Department of Justice.”

Mr. Keisler spoke out one day after the Justice Department confirmed a Fox News report naming nine political appointees who had worked on detainee litigation before to joining the government. The department had declined to identify seven of those officials in response to a request by congressional Republicans.

Former Bush lawyer John Bellinger calls attacks “inappropriate” “cheap shots.” On the March 4 edition of CNN's The Situation Room, during a report discussing the attacks on DOJ lawyers, former Bush administration lawyer John Bellinger said, “I think those sorts of cheap shots, suggesting that a lawyer who is simply defending a client somehow shares those views, are -- really are inappropriate.” Bellinger also stated, “John Adams represented Tories who were accused of treason back in the revolution. This is the sort of work that we ought be applauding and not attacking.”

Former military commissions prosecutor under Bush Col. Morris Davis reportedly calls attacks “outrageous.” The Washington Independent's Spencer Ackerman reported on March 2 that Air Force Col. Morris Davis (Ret.), who served as a chief prosecutor for the Office of Military Commissions during the Bush administration, called the attacks on the DOJ lawyers “absolutely outrageous.” Referencing recent attacks on DOJ officials Neal Katyal and Jennifer Daskal, Morris reportedly said, “It is absolutely outrageous ... to try to tar and feather Neal and Jennifer and insinuate they are al-Qaeda supporters.” From Ackerman's Washington Independent post:

“Neal in particular was and is one of the sharpest and hardest-working attorneys I've known in the 27 years I've been practicing law,” said Davis, who supervised prosecutions at Guantanamo from 2005 to 2007. “It is absolutely outrageous for the Cheney-Grassley crowd to try to tar and feather Neal and Jennifer and insinuate they are al-Qaeda supporters. You don't hear anyone refer to John Adams as a turncoat for representing the Brits in the Boston Massacre trial.” Davis, of course, opposed Katyal on the famous case of Guantanamo Bay detainee Salim Ahmed Hamdan's habeas corpus rights -- a case that Katyal won in the Supreme Court, striking down the first iteration of the military commissions. “He was the epitome of professionalism, and I can't say that about a lot of the folks involved” in the commissions, Davis continued.

“If you zealously represent a client, there's nothing shameful about that,” said the retired Air Force colonel. “That's the American way.”

Former Bush lawyer Reginald Brown calls attacks “beyond a cheap shot.” According to a March 4 Washington Post article, former Bush lawyer Reginald Brown stated, “It's beyond a cheap shot to suggest that a lawyer is an al-Qaeda sympathizer because he advocates a detainee's position in the Supreme Court.”

Wash. Post, CNN legal analyst criticize attacks on DOJ

Washington Post: “Attacks are an effort to smear the Obama administration and the reputations of Justice Department lawyers.” A March 5 Washington Post editorial called the attacks on the DOJ lawyers “an effort to smear the Obama administration and the reputations of Justice Department lawyers who, before joining the administration, acted in the best traditions of this country by volunteering to take on the cases of suspected terrorists.” The editorial continued, “They now find themselves the target of a video demanding that they be identified, as if they had committed a crime or needed to be exposed for subverting national security.”

CNN legal analyst Bloom: “We should not be conducting a witch hunt into what people as attorneys did before they came to the DOJ.” During the March 5 edition of The Situation Room, CNN legal analyst Lisa Bloom stated: “We shouldn't be conducting a witch hunt into what people as attorneys did before they came to the DOJ. If you want to ask them what their values are, whether they are loyal to the policies that they are working on, fine. But who they represented in their past lives as attorneys is entirely irrelevant.”

Attorney assisted in detainee case at request of DOD

Dellinger: DOD official requested assistance in detainee case. In his March 5 Washington Post op-ed, Dellinger detailed “the story of one of those” DOJ lawyers who came to represent detainees at the request of Bush Department of Defense officials:

In June 2007, I was at a federal judicial conference when I received an urgent message to call the Defense Department. The caller was Lt. Cmdr. Kuebler, a uniformed Navy officer who had been detailed to the Office of Military Commissions. As part of his military duties, Kuebler had been assigned to represent Omar Khadr, a Guantanamo detainee who was to be tried before a military commission. Kuebler told me that the U.S. Supreme Court had agreed that day to review the case of another detainee who had been a part of the same lower court proceeding as Khadr. Because Kuebler's client had not sought review at the Supreme Court, this situation raised some complex questions of court practice with which Kuebler was unfamiliar. Kuebler's military superior suggested he call me and ask whether I could assist him in analyzing the applicable Supreme Court rule.

It was a Friday night. I called Karl Thompson, a lawyer at my firm who had previously been a Supreme Court law clerk, and asked whether he could look into the question over the weekend. I told Thompson that the military lawyers assigned to these cases had a very burdensome workload and that it seemed that Kuebler could really use our help. Even though Thompson was extremely busy with other work at the firm, he said he would somehow find time for this as well.

Over the next several months, Thompson (in addition to his other firm work) provided assistance to Kuebler and his Defense Department colleague in their briefing before the Supreme Court and, in Khadr's case, the lower courts. Khadr's case raises important questions, including the legal status of juvenile detainees (he was 15 years old at the time of capture). In 2009, Thompson left our firm to join the Office of Legal Counsel at the Justice Department.

Thompson's assistance to the military officers who had been assigned to Khadr's case seemed to me to be not only part of a lawyer's professional obligation but a small act of patriotism as well. The other Justice Department lawyers named in this week's attack came to provide assistance to detainees in a number of ways, but they all deserve our respect and gratitude for fulfilling the professional obligations of lawyers.

Fox & Friends has previously suggested DOJ lawyers sympathize with terrorists

Doocy wondered if DOJ lawyers are “sympathetic to the Al Qaeda cause.” During the February 22 edition of Fox & Friends, co-host Steve Doocy stated of the Justice Department lawyers, “And the argument continues, you know, if they represented these guys, are they sympathetic to the Al Qaeda cause?”

Malkin suggested DOJ has “jihadis' best interests ... at heart.” During the February 25 edition of Fox & Friends, Fox News contributor Michelle Malkin stated, “It raises all sorts of conflicts of interest questions, and, more importantly, national security questions.” She continued: “I think that the American people have a right to know whether the people who are working for them in the government are people who have the jihadis' best interests, and not our best interests, at heart.” Doocy responded that the attorneys would probably say they are not sympathetic to the terrorism suspects.