Benjamin Wittes on the AQ7 Ad

by Kenneth Anderson

The excitement over the AQ7 ad put out by Liz Cheney’s organization has died down, but Ben Wittes has this piece up in The New Republic extending the letter that he drafted, and to which I earlier linked, signed by a group of conservative and centrist folks criticizing it.  I was one of the signers, and wound up sticking up by own very lengthy comment about it over at Volokh.  I didn’t link here at the time, as I thought the tone a little waspish for OJ, but with Ben’s article in TNR, I’ll change my mind and link to it (it’s long and the title is “No Righteous Gentile Award, Please”).

I suppose the key point for Ben and me, in somewhat different ways, is that we have each received much praise from folks on the left for defending Obama lawyers such as Neal Katyal or Jen Daskal.  No one objects to praise, or at least I don’t, but much of it was a little misplaced.  The praise tended to be as though, in order to defend the Obama lawyers, we had somehow changed our minds about the Bush lawyers.  Whereas, for Ben and for me, each in somewhat different ways, the issue was the same.  We defended Katyal and Daskal because we had defended the Bush lawyers and thought the same principle applied.  I also followed up with an response to conservatives such as Andy McCarthy who attacked the Wittes letter; it too was fairly waspish in tone.  What with health care reform, and lots of other things on the agenda, the discussion is moving on, but it has been an important one, and at least among conservatives, a clarifying one.

From the opening of Ben Wittes’s essay:

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 Postasked 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.

4 Responses

  1. The same principle does not apply.  For defense counsel the principle is representation in adversarial proceedings.  For torture lawyers, it is counseling someone to commit a crime which is an ethical violation and a crime. Big difference no matter how hard everyone works to create equivalence in their own head.

  2. Incivility in the arena of National Security goes along with the democratization of that space.  There are people who do think sending Americans to war on false pretenses is a fairly significant incivility.  Or torturing people in our name.  Now these may be done in filtered tones by people in well dressed suits with fine pedigrees from the finest institutions and many friends, but that should be of no moment in a nation of laws and not men.

  3. “I suppose the key point for Ben and me, in somewhat different ways, is that we have each received much praise from folks on the left for defending Obama lawyers such as Neal Katyal or Jen Daskal. No one objects to praise, or at least I don’t, but much of it was a little misplaced.”

    Wittes doesn’t say anything about liberal praise in his TNR piece so that’s a red herring. The starting premise was conservative ambivalence about defending the AQ7 because of a perceived asymmetry in the defence of legal professionalism. Wittes simply argues that were a sub-set of “moderate” Bush lawyers who were subject to what he characterises as unfair and intemperate attacks by the New York Times, and critics such as Scott Horton, which did not evoke this kind of letter from liberals. But he notably excludes the main architects of the Bush torture-detainee policy fiasco, such as Yoo, Bybee and Addington, from this defence of good faith which obviously opens a significant gap in the equivalency argument.

    So this is really an argument at the margins about people like Haynes, Goldsmith and Bellinger. Personally, I can see where he’s coming from as far as that goes, but his piece doesn’t really demonstrate the equivalency. The AQ7 haven’t done anything remotely improper, whereas it’s at least arguable that, in some instances, the above lawyers made mistakes or failed to have sufficient curative effect, as Wittes acknowledges in his piece. Moreover, they certainly didn’t get treated with the same opprobrium as the main torture architects, or arguably the AQ7, so the rationale for a letter is less convincing.

    At best Wittes has made a decent case that the allegations against some of these more moderate conservatives deserve to be revisited, with some accountability for the harshest commentary, but that’s a different issue.

  4. The Haynes, Goldsmith and Bellinger’s are certainly seeking to have themselves rehabilitated – been going on for years – and this is a further thinly veiled effort on those people.  Yet they are up to their elbows in this space too starting from January-February 2002 and that is why a object to these relentless efforts for people to be rehabilitated.  Good faith leaves me cold. It is as if good faith makes illegal activities OK.  Tell that tp Charlie Graner serving 10 years for doing the bidding of these types.

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