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.