Naming and Shaming: Pro Bono Becomes Political Ammo

March 23, 2010 |  Tagged , , | Comments Off on Naming and Shaming: Pro Bono Becomes Political Ammo

By Ben Neumeyer

For the right-wing media, criticizing the Department of Justice under Eric Holder and its handling of the war on terror  has become a bit like the proverbial “spaghetti test”: throw what you can against the wall and see if it sticks.  The newest salvo has come from Keep America Safe, a political advocacy organization dedicated to defending Bush-era policies in the war on terror.  The organization, founded by Liz Cheney, Bill Kristol and Deborah Burlingame, the survivor of a 9/11 victim, released a video calling the patriotism of the Depart of Justice into question.  It’s dishonest, condescending, and wrong, but has to be see to be believed. (Available here)


The video attempts to portray seven political appointees at the DOJ as jihadi sympathizers for fighting for due process for Guantanamo detainees pro bono while they were working at large law firms.  Even better, it suggests that Justice (or the “Department of Jihad”) is covering up their identities for unsavory reasons.   In the past few days, the video has become a minor right-wing news meme.

It’s helpful to trace from whence this came:  several months ago, Senator Charles Grassley (R-IA) asked Holder to reveal which lawyers at the department had previously worked on behalf of Guantanamo detainees.  The DOJ responded by sending a letter to the Senate saying nine attorneys in political appointee positions had done so before joining the department.  It also mentioned that they were obeying ethics rules regarding conflicts of interest.  (via NYT)

This episode attracted little news coverage until the Keep America Safe video showed up.  Since then, the story has blossomed, first with Fox News breaking a news story “uncovering” the identities of the seven lawyers (all of whose names were already included on the case briefs, which are publicly available).  While the story makes no associative claims, the author casts it as a follow-up to the Keep America Safe video and makes a few stylistic choices which which clearly indicate his slant, such as using scare quotes to depict the “self-described ‘conservative’ Rutherford Institute,” one of the civil liberties groups who filed a detainee-related brief.

The story made it onto CNN on Thursday with a segment on the Situation Room with Wolf Blitzer.  CNN is often called one of the flagships of the liberal media.  However, this is hard to believe from watching the segment, which has the journalistic integrity of an US Weekly cover story.  While couching the piece as a debate, CNN flashes all the slogans from the video on the screen, including “Dept. of Jihad?”; “Al Qaeda 7”; and “Are Justice Dept. lawyers disloyal?”  (Glenn Greenwald at Salon has a good breakdown of the story, available here)    An appearance from Liz Cheney on the weekend news talk shows shouldn’t be far behind.

There are two things that particularly stink about this campaign.  The first is that none of the pundits who are selling it have advanced a cogent theory as to why there is a real national security or conflict-of-interest issue.  The minds behind it have relied on little more than some insinuation about the attorneys’ “deeply held political beliefs.”  Indeed, there are deeply held political beliefs at issue here, but they have more to do with due process and the faithful adherence to the principles of the legal profession.

This is the tragedy of the narrative Keep America Safe is using.  It completely ignores the fact that the American system of justice relies on an adversarial system where both parties rely on zealous advocates to protect their interests.   When either side lacks competent representation, courts don’t have the best argument on which to base their decisions.  Lawyers who sign the professional code of conduct commit themselves to pro bono public service for the disadvantaged so that they have access to due legal process– and they are encouraged to take on controversial or unpopular clients.  The attorneys in question were working at some of the nation’s top law firms when they took on Guantanamo clients, and they are experts on the complex constitutional issues that would arise in such a case.  They were serving their country and their profession by ensuring that the detainees received due legal process.  Keep America Safe’s allegations completely ignore these facts.  In addition, these pundits stoop low enough to assume their audience will be too ignorant to be familiar with basic operation of the legal profession.  Partisanship and intellectual flexibility are part of the practice of law: public defenders become attorney generals, and vice versa.  The rules of professional responsibility address potential problems with strict conflict of interest provisions.  To claim that these attorneys are somehow different is to assume that they’re too mentally feeble to keep radical islam separate from constitutional law.

The second tragedy of this issue is that as the discourse becomes more prominent and shrill, factual context falls by the wayside.  Liz Cheney will never point out the fact that the Bush-era DOJ also hired attorneys who represented detainees.  (hat tip to ABC).   Or the fact that at attorney at the law firm founded by ever-partriotic Rudy Giuliani did the same.  Or the fact that 34 of the nation’s 50 largest law firms have done Guantanamo pro bono work and the absurd inferences it would support under her rationale.  Sadly, this issue will likely just become another shrill fight for cheap political points which the media will force us to endure until the next one comes along.

Picture courtesy of Flickr user gluemoon.


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