At issue are DOJ lawyers who, before they joined the administration, represented detainees at Guantanamo, filed amicus briefs in detainee-related cases, or were involved in advocacy on behalf of detainees.
The names of two of the officials, Principal Deputy Solicitor General Neal Katyal and National Security Division Attorney Jennifer Daskal are known. But Republicans have seized on the fact that the DOJ isn't releasing the names of seven other officials who fit that description. Thus, the "the Al Qaeda Seven."
The critics are not only questioning the loyalty of top lawyers in the Obama Administration, but are also attacking the age-old and thoroughly American practice of lawyers defending clients with whose ideology they may not agree (see Adams, John).
Katyal represented Salim Hamdan, Osama bin Laden's driver, in the landmark case that led to the overturning the Bush Administration's military commissions. As senior counsel for Human Rights Watch, Daskal worked on detainee issues.
A professor at Georgetown, Katyal became one of the most celebrated young lawyers in the country after arguing -- and winning -- the Hamdan case before the Supreme Court.
The attack began at a Nov. 18 Judiciary Committee hearing. Grassley, Republican of Iowa, raised the issue with Attorney General Eric Holder, asserting that Katyal and Daskal have a conflict of interest. A couple weeks later, Grassley and the other committee Republicans asked the DOJ to produce a list of names of officials who previously worked with detainees. The department responded Feb. 18 with a letter from one of Holder's deputies that said nine officials fit Grassley's criteria. But the letter did not give the names.
The Republicans reiterated their demand for a list of names in a new letter on Feb. 26.
In the meantime, the interest in the story heated up in the right-wing media and spilled over into the mainstream. The Washington Examiner's Byron York seized on the DOJ's response to Grassley. National Review and the Weekly Standard got on the case. Michelle Malkin raged at "Corruptocrat AG Eric Holder." Investor's Business Daily published an editorial titled "Department of Jihad."
Finally, on Feb. 26, ABC picked up the story.
Today, the Web ad from Keep America Safe, which Liz Cheney founded as an outlet to advance her agenda last October, was featured on Politico. The Weekly Standard blogger Michael Goldfarb, who works at lobbying firm Orion Strategies and is also Keep America Safe's spokesman, told Politico: "Holder has hired lawyers who used to represent terrorists to work in President Obama's Justice Department, and he won't tell the American people who they are."
Despite the heated rhetoric (Grassley claimed that the DOJ officials' past work "creates a conflict of interest problem"), a legal ethics expert tells TPMmuckraker that there is no ethical breach.
"It is not a conflict of interest under the rules of any U.S. jurisdiction for a government lawyer who has represented detainees in private practice to work on detainee issues at the Justice Department.," Stephen Gillers, a professor at NYU Law school, said in an e-mail.
"Under U.S. legal ethics rules in every state, this is no different from hiring an antitrust lawyer, a criminal defense lawyer, or an environmental lawyer from private practice to work in the same general area of law for the government," Gillers said. "They, and a lawyer who has represented detainees, can work in the same field for government so long as they stay away from the specific matters on which they worked in private life."
The Justice Department said in its letter to Grassley that political appointees recuse themselves from particular cases in which they were previously involved.
Judiciary Committee Democrats have so far been silent on the issue. Press secretaries for several top Judiciary Dems did not immediately respond to requests for comment.
But some liberals who work on national security issues are outraged.
"It's not kind of like McCarthyism, it is exactly what Joe McCarthy did with his Communist witch hunts," Ken Gude of the Center for American Progress tells TPMmuckraker in an e-mail. "Cheney accuses the Attorney General of the United States of being a supporter of al Qaeda and running the 'Department of Jihad,'" a reference to the Investor's Business Daily editorial that is featured in the Cheney ad.
Watch the ad below: