Washington Post (2.9.10)

Smearing the Constitution

By Eugene Robinson

The word "McCarthyism" is overused, but in this case it's mild. Liz Cheney, the former vice president's ambitious daughter, has in her hand a list of Justice Department lawyers whose "values" she has the gall to question. She ought to spend the time examining her own principles, if she can find them.

A group that Liz Cheney co-chairs, called Keep America Safe, has spent the past two weeks scurrilously attacking the Justice Department officials because they "represented or advocated for terrorist detainees" before joining the administration. In other words, they did what lawyers are supposed to do in this country: ensure that even the most unpopular defendants have adequate legal representation and that the government obeys the law.

Liz Cheney is not ignorant, and neither are the other co-chairs of her group, advocate Debra Burlingame and pundit William Kristol, who writes a monthly column for The Post. Presumably they know that "the American tradition of zealous representation of unpopular clients is at least as old as John Adams' representation of the British soldiers charged in the Boston Massacre" -- in other words, older than the nation itself.

That quote is from a letter by a group of conservative lawyers -- including several former high-ranking officials of the Bush-Cheney administration, legal scholars who have supported draconian detention and interrogation policies, and even Kenneth W. Starr -- that blasts the "shameful series of attacks" in which Liz Cheney has been the principal mouthpiece. Among the signers are Larry Thompson, who was deputy attorney general under John Ashcroft; Peter Keisler, who was acting attorney general for a time during George W. Bush's second term; and Bradford Berenson, who was an associate White House counsel during Bush's first term.

"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," the letter states.

But maligning is apparently the whole point of the exercise. The smear campaign by Cheney, et al., has nothing to do with keeping America safe. It can only be an attempt to inflict political damage on the Obama administration by portraying the Justice Department as somehow "soft" on terrorism. Even by Washington's low standards, this is unbelievably dishonest and dishonorable.

"Whose values do they share?" a video on the group's Web site ominously asks. The answer is obvious: the values enshrined in the U.S. Constitution.

The most prominent of the nine Justice officials, Principal Deputy Solicitor General Neal Katyal, represented Osama bin Laden's driver, Salim Hamdan, in a case that went to the Supreme Court. In a 5-to-3 decision, the court sided with Hamdan and ruled that the Bush administration's military tribunals were unconstitutional. Are Liz Cheney and her pals angry that Katyal was right? Or do they also question the "values" and patriotism of the five justices who voted with the majority?

The letter from the conservative lawyers points out that "in terrorism detentions and trials alike, defense lawyers are playing, and will continue to play, a key role." It notes that whether terrorism suspects are tried in civilian or military courts, they will have access to counsel -- and that Guantanamo inmates, even if they do not face formal charges, have a right to habeas corpus review of their detention. It is the federal courts -- not defense lawyers -- that have made all of this crystal clear. If Cheney and her group object, they should prepare a blanket denunciation of the federal judiciary. Or maybe what they really don't like is that pesky old Constitution, with all its checks, balances and guarantees of due process. How inconvenient to live in a country that respects the rule of law.

But there I go again, taking the whole thing seriously. This is really part of a death-by-a-thousand-cuts strategy to wound President Obama politically. The charge of softness on terrorism -- or terrorist suspects -- is absurd; Obama has brought far more resources and focus to the war against al-Qaeda in Afghanistan than the Bush-Cheney administration cared to summon. Since Obama's opponents can't attack him on substance, they resort to atmospherics. They distort. They insinuate. They sully. They blow smoke.

This time, obviously, they went too far. But the next Big Lie is probably already in the works. Scorched-earth groups like Keep America Safe may just be pretending not to understand our most firmly established and cherished legal principles, but there is one thing they genuinely don't grasp: the concept of shame.