A silly smear on the Justice Department

Some conservative critics of the Obama administration are claiming that Al Qaeda has infiltrated the Justice Department in the persons of nine lawyers who once represented or advocated for suspected terrorists. Keep America Safe, whose board includes Elizabeth L. Cheney, former Vice President Dick Cheney’s daughter, has posted a series of scurrilous items about the attorneys on its website. Among the attacks is a video containing a newspaper headline reading “DOJ: Department of Jihad?” and flashing the question “Whose values do they share?” Sen. Charles E. Grassley (R-Iowa), who separately conducted a campaign to identify the lawyers, said that Americans “have a right to know who advises the attorney general and the president on these critical matters.”

This is a manufactured and silly “scandal.” Providing legal representation even for the guilty is in the finest traditions of this country’s legal system. And it’s not at all uncommon for Justice Department lawyers to have worked in areas that overlap with what they do in government service. As legal ethicist Monroe Freedman has noted, it’s no more improper for lawyers who represented detainees to join the Justice Department than it was for Thurgood Marshall, the legendary civil rights litigator and future Supreme Court justice, to serve President Lyndon B. Johnson as solicitor general. (Under ethics rules, Obama’s appointees may not participate in particular matters involving previous clients.)

Democrats and Republicans alike have denounced the attack on the nine lawyers. Peter D. Keisler, an assistant attorney general in the George W. Bush administration whose judicial nomination was blocked by Democrats, said the fact that government lawyers represented detainees in the past “should never be a basis for suggesting that they are unfit in any way to serve in the Department of Justice.”

The notion that these lawyers have a conflict of interest is absurd. Most of them focus on issues other than detainee policy. Two who have been working on detainee issues are Deputy Solicitor General Neal Katyal, who represented a Guantanamo detainee, and National Security Division lawyer Jennifer Daskal, who worked for Human Rights Watch, a group that has engaged in public advocacy of detainees’ rights. Katyal has worked on matters dealing with detainees in Afghanistan. Daskal works on detainee policy, but the Justice Department says she wouldn’t work on the case of any individual whose cause she championed.

Whether the subject is the closing of Guantanamo or the plan (now being reconsidered) to try self-proclaimed 9/11 mastermind Khalid Shaikh Mohammed in civilian court, critics have sought to portray the Obama administration as soft on terrorism. But this smear campaign is also aimed at a bigger target: the American legal system.