In the wake of the Cully Stimson flap, former Solicitor General Ted Olson and Georgetown's Neal Katyal co-authored a Legal Times commentary urging both left and right to tone down their attacks on lawyers who represent unpopular or "politically incorrect" clients. Olson and Katyal lament that attorneys on all sides of terrorism-related cases have been vilified for their work, and observe that the adversarial system of justice depends upon the vigorous advocacy of popular and unpopular causes alike.
The well-deserved criticism of Stimson’s remarks has thus far not encompassed another disturbing trend: the vilification of government lawyers involved in the war on terror. Some star law school graduates have recently been warned that going to the Justice Department to work on terrorism cases or terrorism policy might harm their long-term careers. Some individuals have taken to calling former Assistant Attorney General Jack Goldsmith, now a Harvard law professor, a war criminal for the advice he gave the government about detention policy. Others have sought to block Assistant Attorney General Peter Keisler from a D.C. Circuit judgeship in part because he personally argued a Guantánamo case in a federal appeals court. These personal attacks have a corrosive effect on the practice of law and on the ability of the government to get the most thoughtful legal advice.Attorneys should not be above criticism, they argue, but criticism should focus on "the merits of the particular position being argued rather than personally on the advocate." I would add that there is a difference between criticizing a lawyer for the way she represents a client — that is, the arguments made, defenses raised, etc., — and attacking the mere fact of representation. Likewise, an attorney's obligation to engage in zealous advocacy on behalf of his clients does not require him to make frivolous or false arguments.
With the war on terror, which unfortunately may go on for generations, America doesn’t have any margin for error. The legal issues that surround this war are enormously intricate and don’t lend themselves to sloganeering-based solutions. When government officials are called “war criminals” and when public-interest lawyers are called “terrorist huggers,” it not only cheapens the discourse, it scrambles the dialogue. The best solutions to these difficult problems will emerge only when the best advocates, backed by weighty resources, bring their talents to bear. And the heavy work of creating solutions for these complicated issues can only move forward when the name-calling ceases.
A final note: Olson and Katyal have represented opposing sides in detention-related cases. Their agreement here is significant.