It’s nice to see that even conservatives are disgusted with Liz Cheney’s latest attack on Eric Holder. As you’ve no doubt heard, Cheney is miffed that there are attorneys in the Department of Justice who, in the past, have defended people accused of nasty crimes. Of course, that’s what defense lawyers are supposed to do, but that doesn’t stop Liz Cheney from sponsoring scary videos insinuating that defending someone swept up by US forces and accused of terrorism is just fundamentally worse than defending an ordinary serial murderer, rapist or corporate swindler.
Cheney and her small but highly vocal group Keep America Safe know how to prey on people’s worst fears and prejudices. So I’m not all that surprised by their attack on lawyers like Neal Katyal, a Georgetown law professor, now Principal Deputy Solicitor General, who previously argued that the Bush administration’s military commissions were unconstitutional — and convinced a conservative U.S. Supreme Court that he was right.
But there’s another reason Cheney’s latest attack should not have come as a surprise. Consider the timing: late on Friday, February 18, the Department of Justice released a long-delayed report that set out the details of how two Justice Department lawyers, in close contact with the Vice President’s office, wrote a series of legal memos that grossly perverted existing law and longstanding legal precedent to justify some of the most heinous acts of torture and institutionalized abuse of U.S. prisoners in American history. Although a career official at the Justice Department ultimately decided that the department’s internal ethics rules were too unclear to recommend sanctions, the facts of the underlying report remain a damning indictment of attorneys John Yoo and Jay Bybee, among others, who gave the legal green light to criminal and immoral conduct.
What better time for Liz Cheney to change the subject?
Sure enough, a little more than a week later, and just days after the Senate Judiciary Committee held a hearing on the Justice Department’s ethics report, Keep America Safe on March 2 released its video on "The Al Qaeda 7" — seven lawyers in the Justice Department with some connection at some point in their careers to the defense of a Guantanamo detainee.
Immediately, the media shifted gears: it was no longer John Yoo we cared about, now it was the "Al Qaeda 7" — mysterious Justice Department lawyers who pal around with terrorists. Republican lawmakers such as Sen. Chuck Grassley of Iowa quickly jumped on the bandwagon.
Sure, the argument came to look kind of silly after The Huffington Post unearthed a 2007 article by Bush administration Solicitor General Ted Olson in which he specifically stood up for those detainees’ defense lawyers, saying they represented the best of American values and were the real patriots. And then several prominent conservative lawyers, such as former DOJ officials John Bellinger and Peter Kiesler, publicly criticized the Cheney attack ad as "unfortunate" and "wrong."
But maybe none of that really matters. After all, it wasn’t like the Al Qaeda 7 had actually done anything wrong or were at risk of any criminal or professional censure. On the contrary, they’d done exactly what the legal profession requires them to do: zealously defend their clients. But Cheney’s attack conveniently shifted the spotlight away from other former Justice Department officials who actually are at risk of professional and criminal sanction.
The Office of Professional Responsibility’s final report provides ample evidence former Justice Department attorneys John Yoo and Jay Bybee intentionally wrote legal memos that were blatantly wrong. It also suggests that White House officials were intimately involved in that process. The fact that John Yoo’s e-mails were "deleted" and unavailable to the ethics investigators is no small matter either, both for what additional evidence those e-mails might have contained and because destroying federal records is a crime — as is obstruction of justice.
Liz Cheney may have managed to temporarily distract the news media from the subject of her father’s role in developing illegal policies that authorized torture. But let’s hope that the Senate Judiciary Committee continues to press its probe, for there are many observers out there, both at home and abroad, who have not so easily forgotten.