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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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.


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