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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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? 


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. 

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