Liz Cheney has stirred up a hornet's nest. The former vice president's daughter now runs a group called Keep America Safe, which last week released a video questioning the "values" of Obama Justice Department lawyers who once represented clients detained at Guantanamo for terrorist activities. Cheney's group claims that Attorney General Holder has hired nine such lawyers, including the principal deputy solicitor general, Neal Katyal, but has refused to identify most of them. "Who are these government officials ... whose values do they share?" the group asks. Now, Cheney is being accused of McCarthyism and even some conservatives are criticizing her.
The main line of attack against Cheney rests on the principle that everyone accused of a crime has the right to legal representation. The critics say it's unfair to tar lawyers with their clients' crimes if the system is to work properly. Even a child molester deserves competent defense, and few would accuse the lawyers who represented such men of sharing their clients' values. Fair enough -- as far as it goes. But leaving aside for the moment the gaping hole in this argument -- namely, that Guantanamo holds enemy combatants, not common criminals -- the analogy still doesn't work.
Imagine that we aren't talking about the Obama Justice Department, or even terrorism. Let's say the year was 2001 and the Justice Department was looking for a deputy assistant attorney general for civil rights. The job was important but not high enough up the food chain to require Senate confirmation, and the sitting AG decided in his own discretion to hire a talented lawyer who had previously represented the White Citizens Council or the Ku Klux Klan in a racial discrimination case or two for the job.
Then let's assume that the same AG appointed a lawyer who once represented the Genovese crime family to work in the organized crime division, another who represented companies with histories of wanton pollution to join the environmental and natural resources division, and others who'd defended clients accused of domestic abuse to work in the office of violence against women.
Somehow, I can't imagine The New York Times or Washington Post jumping to defend these choices, no matter how fine the legal skills of the hypothetical Justice Department hires. In fact, I'd expect the media to raise questions about the AG's judgment and motives, and rightly so.
All criminal defendants have the right to counsel, but not all lawyers have the right to be hired by the U.S. government. DOJ lawyers represent the United States, and lawyers who have chosen to represent enemy combatants -- even if they do so solely to challenge a point of law -- should, at the very least, not be at the top of the hiring list. Such representation might not be an automatic disqualifier in every single case, depending on the circumstances, but how is it that not one, or even two, Guantanamo attorneys ended up at DOJ, but nine? This suggests a pattern and practice by the attorney general that is highly disturbing.
We'd have a right to question what the attorney general was thinking even if the lawyers in question were defending common criminals. But it's important to remember here that the Guantanamo detainees are combatants who've been picked up on the battlefields of the War on Terror. Granted, those battlefields are less geographically defined by front lines than in a traditional war. But the individuals involved are for the most part soldiers nonetheless. How is it that Holder didn't recognize the inherent conflicts in hiring attorneys who had defended these combatants against the United States to now zealously defend the United States against them and their compatriots?
Cheney and her group are asking an important question. Whose values does the Obama Justice Department represent? There is nothing sinister in challenging the attorney general to explain his choices -- and if the media weren't so blinded by their own biases, they'd have broken the story before Liz Cheney did.
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