George Bush’s Justice Department indicted former Alaska Senator Ted Stevens. He was tried and convicted on charges of failure to report financial contributions to the Senate. After the trial it was accidentally disclosed that government attorneys failed to turn over important Brady discovery. ¹

The government then moved to void the conviction with prejudice. The presiding judge, Emmet G. Sullivan ordered an independent investigation and appointed Washington attorneys Henry F. Schuelke, III and William B. Shields to perform the investigation. Schuelke and Shields have completed the investigation and they turned over the 500 page report to the judge, who is at least temporarily is keeping the report under seal. But he released an order allowing the Justice Department, the attorneys involved and Steven’s attorneys to object to the unsealing of the report. The order indicated that the scope of the government’s failure to provide Brady discovery is greater than previously reported. Schuelke and Shields found that the government attorneys intentionally withheld Brady evidence that would have supported Steven’s defense and which would have questioned the credibility of the government’s major witness.

But at the same time the report recommended that the government attorneys not be criminally charged since there was no violation of a direct order from the court. Without such an order it would be difficult to find the attorneys in contempt of court. Sullivan’s order does not indicate whether Schuelke and Shields recommended that the attorneys be reported to the Bar for possible disciplinary action or whether they should be banned from further appearances before the District Court for the District of Columbia where the trial was held. It is expected that Sullivan will decide whether to make the report public by January and then we may know more.

Mike Scarcella and David Ingram have a post Friday’s BLT:The Blog of Legal Times about the efforts of certain right wing group to force out Department of Justice attorneys who prior to being hired by the Department of Justice represented detainees at Guantanamo.

Liz Cheney’s group called Keep America Safe has gone on You Tube with a video asking the Justice Department to identify their attorneys who previously represented detainees. Cheney and her colleagues are usin McCarthy guilt by association methods to connect Justice Department lawyers with the their clients who were charged with terrorist activities. In fact many of the lawyers who have represented detainees are prominent Republicans active in party politics and who were appointees in the Bush and Reagan administrations.

But that’s what lawyers are supposed to do. Defendants have a Six Amendment right to representation regardless of their politics and regardless of the charged crime. They not only have a right to representation but they have a right to zealous representation. Bush Solicitor General Ted Olson stated that those who represent Guantanamo detainees represent the best in the American values.

What would Cheney have said about John Adams who represented British soldiers accused of killing demonstrators in the Boston Massacre or Atticus Finch who represented an African American accused of raping a white woman in Alabama during the 1930′s in Harper Lee’s novel, “To Kill a Mockingbird.”

The release of nine Department of Justice memos written in the months following the 9/11 attacks, during the Bush presidency, shows the total contempt the government had for the Bill of Rights.

In an October 23, 2001 memo Deputy Assistant Attorney General John Yoo and Special Counsel Robert J. Delahunty stated that not only could he military be used to arrest terrorists in the United States but that they did not have to comply with Fourth Amendment requirements regarding the use of search warrants. In a September 25, 2002 memo Yoo justified amending the law to allow warrantless searches in the United States to obtain intelligence.

Also in the October 23, 2001 memo Yoo stated that, “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully,” Deputy Assistant Attorney General John Yoo wrote, in another memo: “The current campaign against terrorism may require even broader exercises of federal power domestically.”

A cardinal rule of statutory interpretation is that when the language of the statute (or the Constitutional amendment) is clear the plain language supersedes other interpretations. The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It has no exception for terrorists or for al-Qaeda or for the whims of George Bush and John Yoo. As Benjamin Franklin said,

They who would give up an essential liberty for temporary security, deserve neither liberty or security.

As Edward R. Morrow said,

We cannot defend freedom abroad by deserting it at home

As Abraham Lincoln said,

Those who deny freedom to others deserve it not for themselves.

The memos point out the need for Senator Patrick Leahy’s Truth Commission. Such a commission would investigate torture, illegal wiretaps, and other violations of human rights.

For it is clear that if we violate our own rights we cannot cry when others violate rights.