Law Students

Furor Over the Cheney Ad

By Casebook Sherpa

The furor generated by the Liz Cheney ad – or rather the organization that Cheney run, Keep America Safe – is interesting to me. (Ad and story here)

Isn’t it all just a question of whether a current client should consent to a potential conflict with the interests of a former client? Or is it really something more?

By now, you’ve probably heard about this discussion (or rather shouting match). The organization produced an ad, demanding to know the identities of those current Justice Department lawyers who were hired by the Attorney General, are now engaged in formulating detainee policy (or prosecuting detainees), and who formerly represented alleged terrorists in custody. The furor has centered on the risk this ad has of demonizing (McCarthy-style) those who defend bad people:

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.)

(links omitted)

I get that point. But I also get the importance of asking the question: does their prior representation of detainees impact the ability of these lawyers to carry out their duty in the Justice Department?

Setting aside the question of whether the ad itself is the most constructive way to raise this question, people have a right to ask the queston, right?

These lawyers are representing us today. Because their prior representation of the detainees could present a conflict isn’t the question merely one of an actual or potential conflict with a former client? If it is, shouldn’t it be disclosed and consented to by the lawyers’ clients? Or is the fact that they’re working for the government change the calculus?

It doesn’t work like that, I know. But raising the question is a way for a democratically-governed people to shed light on the potential conflict and, in a manner of speaking, consent to it. Is it not?

Setting aside whether there can really be a constructive dialogue over this or whether there is really a way to determine whether people consent to something like this, raising the question is not unreasonable it seems to me. Just as it’s not unreasonable to push back with concern asking the question at all (let alone in such a provocative fashion) would result in the demonization of those who have represented the accused.

Is it even possible to raise the point without unleashing the fury?

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Full post as published by Fight The Hypo on March 08, 2010 (boomark / email).