The Magazine

Gen. ‘Stonewall’ Holder

The Obama Justice Department—most opaque ever?

May 10, 2010, Vol. 15, No. 32 • By JENNIFER RUBIN
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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.

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