From Al Qaeda 7 to DOJ 3

American Taliban lawyer appointed to third-highest Justice Department position

March 13, 2012

A lawyer who came to prominence for his full-throated defense of a subsequently convicted terrorist was quietly promoted to the No. 3 slot at the Department of Justice last month, a post that puts him in charge of the administration’s policy regarding Guantanamo Bay detainees.

The move has raised red flags on Capitol Hill and elsewhere among national security stalwarts who argue that the promotion could imperil the country’s longstanding war on terrorism.

The Obama administration appointee at the center of the debate is Tony West, a longtime Justice Department lawyer who received national attention for his aggressive defense of John Walker Lindh, the so-called American Taliban who is currently serving 20-years in prison for colluding with al Qaeda in Afghanistan and taking up arms against U.S. troops.

Late last month, President Obama appointed West as the DOJ’s acting associate attorney general, a posting that does not require Senate confirmation. He formally began the job on Monday.

As the department’s third in command, West is tasked with defending a broad array of legal matters, such as Obama’s controversial health care law and civil rights issues. He also will be in charge of "litigating national security cases, such as habeas corpus petitions brought by detainees at Guantanamo Bay," according to the DOJ.

National security experts and some in Congress worry that West’s extensive and controversial past has left him unfit to oversee Gitmo, the Cuba-based detention facility that houses some of the world’s most dangerous enemy combatants.

"In any other Justice Department, in any other administration, representing the enemies of the United States would have been a disqualifier for a job inside DOJ setting detainee policy," said J. Christian Adams, a former DOJ official in the department’s civil rights division. "But in [Attorney General] Eric Holder’s DOJ, it seems to be the chief prerequisite."

Rep. Joe Walsh (R., Ill.), who has been a vocal congressional opponent of Obama’s national security policy, said that West’s promotion reveals a hazardous pattern and practice within the administration.

"When I first learned of this, I thought it is outrageous; but it’s getting redundant with this president," Walsh, who said he plans on authoring a letter to Holder expressing his dismay, told the Free Beacon. "They’re not taking this war on terrorism seriously to put a guy like this in that position—it almost seems like a real conflict of interest."

According to various reports and those familiar with the Lindh case, West went far beyond a lawyer’s call of duty by accepting the case pro bono and maintaining to this day that Lindh "is not a terrorist."

West signed on to Lindh’s defense in 2002, when he was a member of Morrison & Foerster, a San Francisco based law firm with a record of providing legal aid to enemy combatants, at least one of whom later admitted to conspiring with al Qaeda.

From the outset, West emerged as one of Lindh’s most vocal proponents.

"He is not a terrorist," West said of Lindh in 2002, during a conversation with the Washington Post. "He did not go to Afghanistan to kill Americans."

Lindh, however, was convicted of supplying services to the Taliban and transporting explosives on the terror group’s behalf.

West—a longtime Obama ally who as California campaign co-chair helped raise an unprecedented $65 million for the president during the 2008 elections—also maintained at the time that Lindh’s conversion to Islam had nothing to do with his willingness to fight alongside members of the Taliban.

West’s former law firm also authored a legal brief in defense of Ali Saleh Kahlah Al-Marri, an enemy combatant who ultimately pled guilty to conspiring with al Qaeda.

At issue is West’s vociferous support for a detainee’s rights to habeas corpus, the main point of contention among those arguing that detainees deserve the same rights as U.S. civilians on trial.

Currently, West is overseeing at least 140 active habeas corpus cases involving Gitmo detainees—and his support for expanded rights is well documented.

"Courts must have the procedural tools that enable them to conduct meaningful reviews of the lawfulness of the government’s action," West said last year, during a speech before the American Bar Association. "Additionally, detainees must have fulsome procedures that allow them to test the legality of their detention."

West favors a policy that would make it easier for detainees to legally detonate the government’s case against them.

"We in the Civil Division [of DOJ] have embraced procedures to help ensure a meaningful review and fair process," West further explained in his speech. "We’ve worked hard to create a process that allows habeas council to review classified evidence; we have taken on significant discovery obligations to provide access to classified material in the government’s files that could be helpful to the detainee in challenging the government’s case."

He adds: "The burden of proof rests with the government—not the detainee—and we must demonstrate that detention is lawful by a preponderance of evidence."

These views—combined with his emphatic defense of Lindh—have left legal observers to wonder whether the administration is serious about defending the country against enemy threats.

"If you volunteer your services to the enemy in wartime, … that’s not performing the traditional role of an attorney in the U.S. justice system," said Andrew McCarthy, a former assistant U.S. attorney who led the 1995 prosecution of Sheik Omar Abdel Rahman—the so-called "Blind Sheik"—and several other terrorists. "That is helping the enemy in wartime."

Several members of the Senate Judiciary Committee declined multiple requests for comment on West’s appointment. But several are on record questioning the administration’s approach to trying detainees in criminal courts.

"The prevailing view of the political appointees in the Department is that the war on terror is a criminal matter, and that there is a presumption of civilian trials for captured terrorists," Sen. Jeff Sessions (R-Ala.) said of the administration during a debate on the Senate floor last year.  "I believe one of the reasons this is happening is because the top levels of the Department have become populated with activist lawyers who have brought their hostilities to their offices."

At least one senior GOP observer in Congress described West’s appointment as unsurprising.

"We should not be surprised that an attorney general whose law firm defended several Gitmo detainees would put the American Taliban's lawyer in charge of detainee policy," a senior GOP adviser in Congress who declined to be named told the WFB. "While frightening and appalling, the attorney general knows full well that this appointment is mere window dressing for the president's liberal base and that the Congress will never back down from its prohibition on detainee transfer to the United States."

West’s defenders have accused critics of waging a biased campaign to smear the lawyer for his work on behalf of a client. It is unfair, they argue, to target West merely for performing his job.

"I realize that right-wing political hacks are going to engage in some pretty loathsome tactics from time to time," wrote Washington Monthly columnist Steve Benen in 2010, when conservative critics at the DOJ were raising similar red flags over the proposed appointment of West and several others. "The crusade against these Justice Department officials obliterates any lines of decency or modern norms, and should permanently discredit the cheap and tasteless attackers."

These arguments failed to resonate among West’s staunchest critics, however.

"Lawyers decide what kind of cases they wish to take," said former DOJ official Adams. "Tony West not only defended John Walker Lindh in his criminal case, but continued to defend him to the public as a good person after his sentencing. He said Walker Lindh would have much to offer America upon his release. That’s shameful to me and many other Americans."

"But fine," added Adams, "If you want to take on that sort of representation—just don’t expect to represent the United States as an attorney, and certainly not as an attorney setting detainee policy. It shows how out of touch on so many issues this DOJ is."

Similarly, Debra Burlingame, a board member of the national security group Keep America Safe, said that when the U.S. government grants suspected terrorists the same rights as Americans, they empower their radical worldview.

"It fuels their willingness to blow themselves up," said Burlingame, who is the sister of Charles Burlingame III, the pilot of American Airlines flight 77, which was steered into the Pentagon by terrorist hijackers on September 11, 2001.

"When we have policies that are weak and apologetic, we fortify their views and give moral sustenance to our enemies," she said. "When you think about someone like Tony West being appointed to a policy position like this, … that appointment might lead to something disastrous. These kinds of policy issues matter."

The Justice Department declined to make West available for this article.