In recent days the Justice Department has been getting angry phone calls about the "Qaeda" lawyers supposedly hired by Attorney General Eric Holder. The reason? An unusually ferocious Web ad by Liz Cheney's advocacy group, Keep America Safe, targeting Justice lawyers who previously did pro bono work for Guantánamo detainees. The ad—in one frame, a headline refers to the DOJ as the "Department of Jihad"—has been denounced as McCarthyism by liberal critics. It's also being condemned by a growing number of former George W. Bush administration lawyers. Ted Olson, who served as Bush's solicitor general, says he has the "greatest respect" for lawyers who represented Gitmo clients; they were acting "consistent with the finest traditions of the legal profession," he says. He calls the attacks on one of the targets, Deputy Solicitor General Neal Katyal, "outrageous." Four years ago, Katyal represented Salim Ahmed Hamdan, Osama bin Laden's former driver, in a landmark Supreme Court case that overturned the military tribunals that Bush created. (Katyal did a "marvelous job" on the case, says Olson.)
But two months ago, Katyal argued before a U.S. appeals court a controversial Obama administration position against giving accused terrorists at the American prison in Bagram, Afghanistan, the right to challenge their detention in federal court—a stand that has drawn stiff criticism from human-rights groups. Another top Justice lawyer Cheney's group is targeting, Tony West, who runs the civil division, once represented accused "American Taliban" John Walker Lindh. But since joining Justice, West has repeatedly signed off on legal briefs opposing the release of Gitmo detainees—and approved appeals when federal judges ordered the detainees released, according to court records. "To demonize [the Justice lawyers] on the basis of who they represented in the past is wrong," says Jack Goldsmith, another former top Justice lawyer under Bush.
Holder's aides may have initially mishandled the issue by refusing a request from Sen. Charles Grassley to identify all nine of the lawyers who previously represented Gitmo detainees (they named only Katyal and Jennifer Daskal, a former lawyer for Human Rights Watch). But one aide, who asked not to be named for political sensitivities, tells NEWSWEEK that Holder was trying to protect the mostly mid- and low-level lawyers involved. Liz Cheney has vigorously defended the ad on TV, and Aaron Harison, a spokesman for Cheney's group, says it's only interested in "transparency." The public "has a right to know," he says, if the lawyers are still working on detainee issues, and why they were hired in the first place. Whatever their validity, the attacks from Cheney's group have gained political traction: White House aides are now reportedly preparing to recommend that the president reverse Holder's decision to try the alleged 9/11 co-conspirators in federal court. On its Web site, Keep America Safe proclaimed at least partial victory, touting the news as evidence the administration is "folding."