Gen. ‘Stonewall’ Holder

May 10, 2010, Vol. 15, No. 32

Attorneys who formerly represented al Qaeda members detained at Guantánamo now labor at the Justice Department representing the United States and shaping policy regarding treatment of those detainees. Yet the attorney general refuses to disclose the names of those who worked closely on detainee matters before joining the Obama administration.

In mid March in Senate testimony, Attorney General Eric Holder (whose former law firm Covington & Burling likes to tout its work for Guantánamo detainees and who personally filed an amicus brief on behalf of attempted “dirty bomber” Jose Padilla, which he failed to disclose at his confirmation hearings) proclaimed in response to a request from Senator Charles Grassley for the names of the attorneys:

There has been an attempt to take the names of the people who represented Guantánamo detainees and to drag their reputations through the mud. There were reprehensible ads used to question their—in essence to question their patriotism.

I’m not going to allow these kids—I’m not going to be a part of that effort. And so with all due respect—their names are out there now. The positions that they hold are out there. That’s all been placed in the public record. I am simply not going to be a part of that effort.

I will not allow good, decent lawyers who have followed the greatest traditions of American jurisprudence—done what John Adams, done what our chief justice has said is appropriate. I will not allow their reputations to be besmirched. I will not be a part of that.

But the identities of the attorneys and whether they continued to work on matters in violation of their ethical obligation to avoid conflicts of interest—or the appearance of conflicts of interest—is a serious issue. An attorney’s conflict of interest may give former clients, in this case terrorists, grounds for overturning a conviction. And for an administration that promised to be the most ethical in history and slam shut the “revolving door,” the potential for high-profile conflicts of interest on national security issues should be a serious issue. On entering office, Obama signed an executive order obligating executive branch employees to sign an ethics pledge prohibiting them from participating “in any particular matter involving specific parties that is directly and substantially related to [their] former employer or former clients, including regulations and contracts.”

The administration, moreover, touts itself as “the most transparent in history” while steadfastly refusing to disclose the names of lawyers who previously litigated on behalf of al Qaeda members (though two, principal deputy solicitor general Neal Katyal and national security division attorney Jennifer Daskal, were well known for their work on behalf of detainees). The Obama Justice Department seems determined to prevent the timely release of information that might give the public insight into just who is offering advice on controversial matters of national security.

In early December, The Weekly Standard submitted Freedom of Information Act (FOIA) requests to the Justice Department seeking to uncover which attorneys who previously represented detainees had recused themselves from cases or policy decisions that might pose a conflict of interest. Thus began five months—so far—of stonewalling by the department. At times striking a near-comic tone, the Justice employees responsible for searching and providing the records soon made clear that there is no system for tracking conflicts within the department and no urgency to provide documents relating to a matter of extreme public interest.

The absence of any conflicts-checking system was confirmed months later by Holder:

Grassley: I want to comment, though, that I doubt that you would share the same feeling for lawyers who represent the mafia, and I doubt that you would hire them in the Justice Department. The department’s response said that the Department of Justice does not keep a centralized database of recusals. And it is the honor of the employees to recuse themselves. Now, you know that large law firms like ones you’ve served in have conflict committees and procedures in place to ensure that rules are followed. Why shouldn’t the Department of Justice, not just under your leadership but under leaderships before you, have some centralized system of conflicts system as private firms have?

Holder: Well, I think that’s actually a legitimate concern that you raise, and that is something that I think is worthy of consideration. Because you’re right, that there is within certainly the law firm that I was a member of, such a database. And that, I think, is something that we can consider at the—at the department.

After all, even attorneys acting in good faith can make errors or forget about cases they participated in years ago. The absence of any system for detecting conflicts of interest also makes it nearly impossible for others to scrutinize whether Department of Justice attorneys are adhering to ethical requirements.

The Bush administration did not have a systematic ethics checking system either. Lawyers tracked their own conflicts and consulted with the applicable ethics officer. But there the recusal process was somewhat broader for at least some senior attorneys. A former Justice Department official explains that he did not work on cases in which his former law firm was involved for at least his first three or four years. He says, “Also, even beyond that time, I did not work on cases with issues substantially similar to ones that I had worked on extensively in private practice.” That is the standard set forth in the ABA model rules.

Approximately a week after the FOIA requests were submitted to three separate groups within the Justice Department, Stephanie Logan, the officer responsible for responding to a request for documents from the attorney general, deputy attorney general, or associate attorney general (all of whom previously worked at law firms representing detainees) called me. She seemed confused as to what I was asking for. I summarized the request: information on recusals for former attorneys of detainees or suspected terrorists.

Logan: What detainee facilities are you interested in?

Weekly Standard: All of them.

Logan: International ones?

WS: Any of them. Any lawyer who has a conflict with any terrorist matter or issue with any detainee facility.

Logan: Can you list one?

WS: Bagram.

Logan: Can you spell that?

WS: B-A-G-R-A-M

Logan: What lawyers?

WS: All of them.

Logan: That’s kind of broad.

WS: You can narrow to January 2009 to the present.

Logan: What sort of policies?

WS: Anything having to do with terrorism. Anyone who is recused from or has a conflict. You have a list, I’m sure.

Logan: So you just want a list?

WS: And all the documents.

On December 17, Logan sent me a letter memorializing the conversation but she did not return multiple calls following up on the request. Finally, after inquiring whether litigation might be required, I received a call back from Logan on April 20 informing me that a “search was underway.” When I asked how far it had progressed I was told, “Um, they are working on it.”

How long will it be? “Hmm .  .  . oh I’d say three to six months.” Three to six more months?

I asked to speak to a supervisor and later that day Laurie Day called to say it was a “complex request” and they were “actively searching for records” from three different attorneys’ offices.

Had they finished any one of them? No.

How long would it take? A minimum of three months—for only three attorneys.

When I informed her that another, larger division had already answered on behalf of many more attorneys, Day said she had no other explanation than “we have a lot of requests.”

So we still don’t know whether the top political appointees of the Justice Department, including the attorney general, weighed in on cases in which they or their former firms represented the Guantánamo detainees or on matters closely related to those cases. Congress doesn’t know and neither do the detainees, whose current counsel (former associates of these officials) have an obligation to raise this issue on behalf of their clients in trial or on appeal. And there is a good chance that the attorney general was not acting with due diligence. After all he “forgot” that he submitted an amicus brief in the Padilla case contesting the ability of America to indefinitely detain enemy combatants. Did he also forget to recuse himself from other matters involving Padilla? So long as the Justice stonewalling continues we can’t tell.

The Justice Department civil division (which is responsible for nearly 200 habeas corpus petitions by detainees) was also slow to respond, but eventually it did provide the requested documents. In January, I spoke to and subsequently received a letter from James Kovakas, who is responsible for the civil division’s FOIA requests. He explained that the division would process the request but did not consider the matter “urgent” so would not expedite it.

Why wasn’t it urgent? Well, Kovakas said it hadn’t appeared much in the media and so it didn’t seem to be a pressing matter of public concern.

When I listed a number of conservative outlets already following the story, he invited me to submit citations to news stories. Kovakas explained, however, that the request was already “at the head of the line,” meaning it was being treated as expeditiously as they could.

I spoke again to Kovakas in late February, and he explained that the request was out to lawyers for all recusal documents. He could give no time frame for their responses and explained there was no database or computer record of this information—just discrete documents. He then conceded that in light of the controversy generated in the media, the matter had become pressing. Still this didn’t change the timeline which was, he explained, dependent on when they got the documents back from the very attorneys at issue in the request.

Nearly a month later Kovakas called and said they were “diligently working on this request.” He could, though, not “explain why it is taking so long.” He continued, “Don’t take this to the bank but I think the end of next week. I met with a bunch of people last week and said I was very unhappy with how long this is taking. They asked a bunch of dumb questions.” He added, “We take FOIA very seriously and appreciate your patience.”

In April, I received 52 pages of documents from the civil division. They proved illuminating.

In a memo dated May 26, 2009, Tony West, the assistant attorney general heading the civil division—who had represented American al Qaeda member John Walker Lindh and whom Fox News had in March identified as one of the former detainee attorneys—recused himself from cases in which he or his firm had been involved, including al Qahtani v. Obama and a case concerning a Boeing subsidiary alleged to have transported detainees to CIA facilities (Mohamed v. Jeppesen Dataplan). Yet an earlier email, dated May 3, 2009, states, “Tony West has been cleared to participate in the management of the GITMO cases, except with respect to decisions relating specifically to .  .  . Al Quhtani v. Obama .  .  . given that Tony W.’s former firm continues to represent the detainee in that case.” Presumably, for more than three weeks he worked on cases like Jeppesen from which he was subsequently recused.

There is no evidence in the documents that anyone systematically examined whether West should have recused himself from any policy decisions or from dozens of other highly controversial cases that might have directly impacted his former clients. Ed Williamson, a former legal adviser to the State Department who has written extensively on ethics issues, says, “The most charitable explanation is that they didn’t spot the issue.”

On August 28, 2009, West along with two other attorneys declared that they could no longer participate in seven cases in which Lindh was a witness, raising the issue whether their participation up to that point had been appropriate. As Williamson notes, “If it was a problem in August, it was a problem in May.” What about cases potentially related to Jeppesen or al Qahtani or with common witnesses? No evidence of recusal from those has been produced. Again, no one seemed to spot the issue.

This muddle is in marked contrast to the actions of a former partner of West’s, Beth Brinkman, who was selected by West as his deputy to head the appellate branch. In repeated emails, she made it clear that she should be recused not only from her former firm’s cases but also from any related issues. In multiple emails in 2009 and 2010 she informed other attorneys who persisted in sending her materials to review that she was (as she wrote on August 3, 2009) “recused from Guantánamo matters.” From documents made available to date, it does not appear that any other attorney took her position.

Other attorneys in the civil division who came from firms that represented detainees—such as Brian Martinez (West’s chief of staff), Geoffrey Graber (counsel to the assistant attorney general), and Ian Gershengorn (West’s deputy in charge of the Federal Programs Branch, which handles habeas petitions)—recused themselves from individual cases where their former firms represented detainees. Gershengorn, however, continued to play a role in setting policy on issues relating to his prior cases. In an email dated July 14, 2009, he wrote, “I have realized that, while I can discuss policy issues arising from substantial support etc., I cannot work directly on the brief because it is one of the Boumediene cases, and Jenner had an amicus brief in that case.” (This begs the question of who, if anyone, was supervising the habeas petitions and the matters from which the political appointees were recused.)

The documents also confirm that the employment of ferocious advocates for detainees is not limited to the Justice Department. The State Department hired Columbia University law professor Sarah Cleveland. Columbia boasted in its announcement, “She will advise the State Department and the executive branch on international law issues, and will help develop the State Department’s position in U.S. litigation involving international and foreign relations law issues.” Cleveland filed an amicus brief in Boumediene, testified that there was no category of detainee “too dangerous to be released” (not even Holder agreed with that), and questioned the “power to detain persons seized outside a traditional theater of combat.”

Cleveland also weighed in on the brief in a case identified as ACLU v. DoD in May 2009 (most likely the issue of release of detainee abuse photos) and invited Beth Brinkman to do the same. Brinkman firmly declined. But with figures such as Cleveland advising the administration, we can see how Obama received the advice that he had no choice but to release the detainee abuse photos. It is hard to escape the conclusion that the government was receiving, as one might expect from those who passionately defended detainees, advice sympathetic to those detainees.

The limited information the Justice Department has so far released raises real concerns as to whether former advocates for detainees were properly recused from matters involving Guantánamo detainees and policy decisions that would inevitably involve their former clients. Did they violate obligations to former clients by construing their recusal obligations too narrowly? Did they damage their current client, the United States, by shading their advice for the sake of consistency with their prior representation?

Professor Richard Painter, an ethics expert from the University of Minnesota, wrote to Holder in April raising such issues. He noted, “There are legitimate concerns about client conflicts for lawyers who previously represented detainees and now work for the Department.” The “simplest” approach he advised would be to have them recused from all detainee matters. If they aren’t, he cautioned,

the Department will have to inquire into the facts of each lawyer’s previous representation of one or more detainees, and the facts of each lawyer’s previous representation by the same lawyer of the United States in a matter involving one or more other detainees.

The professor noted that the ABA Model Rule 1.9 requires Justice to examine if other matters are “substantially related” to the exact ones in which the attorneys appeared, an analysis made difficult with the government itself taking the position “that some of these detainees have been acting in concert with other detainees.”

At least with respect to the civil division—the only one that has yet lifted the veil of secrecy—it appears this was never done. West and his former law partners (except Brinkman, who seems to take Painter’s view) simply listed and recused themselves from cases on which they or their former firm represented detainees. There is no evidence that anyone considered whether the scope of that recusal should have been far broader.

In an interview, Painter explained that there are multiple risks for these attorneys. “One danger is that you give an issue to the detainee who is convicted. Another is that you actually disclose information [you obtained] from a former client. A third is that the lawyer in an effort to avoid one and two bends over backwards by underrepresenting” the United States. Clients (even the government) have a right to be fully represented.

The administration’s defenders contend that many lawyers in private practice, antitrust specialists particularly, go into government and litigate in areas they previously practiced. The Guantánamo situation, however, is different in three key respects.

First, this administration had promised to avoid unseemly sideswitching and passed a specific ethics policy to prevent even the appearance of impropriety. Second, the national security stakes are much higher, and any risk of reversing a key conviction is a danger. And finally, unlike an antitrust lawyer who can litigate thousands of cases without implicating a former client, the universe of Guantánamo detainees is so small and interrelated that it is virtually inevitable that policy advice or decisions in one case will have direct implications in another. If there was any doubt, a Bush administration appointee who left the civil division was instructed by the Obama administration that he must recuse himself in private practice from all Guantánamo matters, not merely the specific ones he worked on. It seems that going out the door the Obama team recognized the potential conflicts for former Bush officials, an issue which escaped their notice for incoming Obama appointees.

It is also noteworthy that the Office of Government Ethics has copies of waivers allowing three Justice Department officials (Holder, former Deputy Attorney General David Ogden, and Assistant Attorney General for the Criminal Division Lanny Breuer) to work on Senator Ted Stevens’s corruption trial. No such waivers appear for any Justice official for Guantánamo matters.

Serious concerns remain whether the Obama Justice Department attorneys, including the attorney general and his closest advisers, complied with the full extent of their ethical obligations. Given the stonewalling by the department, it is difficult to be confident the American people are receiving the robust representation to which they are entitled. We may have to wait for FOIA responses to finally trickle in or for future litigation to find out whether attorneys in the administration inadvertently gave their former clients new defenses against the United States. Or can the Obama administration be pressured into—at long last—fulfilling its promises of transparency.

Jennifer Rubin is a contributing editor to Commentary magazine.