The Obama administration, and Holder’s Justice Department in particular, have a knack for making a bad thing worse. Their typical scandal pattern is: (a) make bold pronouncements about unprecedented transparency, (b) show a little leg, and then (c) stonewall, after which (d) White House chief of staff Rahm Emanuel assures some friendly journalist that everything would have been different if only they’d have listened to him. The result is the the trifecta: The administration ends up looking hypocritical, sinister, and incompetent.
So it is with the attorney general’s grudging disclosure, after a year of stonewalling, of the names of just two of the Justice Department lawyers who volunteered their services to al-Qaeda detainees. I don’t quite understand this reluctance. After all, to hear Holder and the legal Left tell it, these attorneys are heroes who — unlike us knuckle-draggers — personify “real American values,” waging a noble jihad to uphold the Constitution against Neanderthals who hold the quaint view that we should crush our enemies and worry more about American lives than terrorist due process. One would think Holder would be anxious to identify these folk and brag about their labors on America’s, er, behalf.
I suspect the number of conflicted lawyers is actually higher than nine since Holder’s disclosure pointed only to DOJ lawyers who worked on detainee cases — rather than including lawyers, like Holder himself, whose firms represented terrorists even if they were not directly involved in those cases. Some lawyers in the latter category, like Holder, were in very senior positions at their firms and could have stopped or sharply limited decisions to volunteer services to the detainees; some probably were not. Holder’s personal leanings are obvious from his 2008 speech, in which he accused the United States of torture, denying habeas corpus to hundreds of enemy combatants, and being a serial violator of international law and the Constitution — but according to him, I am the polemicist.
In any event, in the pamphlet I’ve done for Encounter Books’s “Broadside” series, How the Obama Administration Has Politicized Justice (for details on the series, see here), I addressed the Gitmo conflict situation at the Obama Justice Department. Here is the relevant excerpt:
The first thing one notices about the Justice Department’s transition from Bush to Obama is the challenge involved in getting the highest-ranking lawyers engaged on the most significant cases. During the Bush years, national security was inarguably the nation’s top priority and Justice Department lawyers were fully engaged in the war on terror. By contrast, key Obama administration lawyers spent those years at law firms and institutions that enthusiastically provided pro bono legal representation and issue-advocacy for America’s enemies. (Yes, American lawyers consider the representation of al Qaeda operatives who target the American public to be the noble work they provide free of charge under the haughty label pro bono publico – “for the public good.”)
Under the profession’s conflict-of-interest rules, this has rendered the Obama administration lawyers ineligible to work on cases in which their former firms participated. That includes Attorney General Holder, whose firm made the terrorists detained at Guantanamo Bay its most lavishly resourced no-fee project (3022 hours in 2007 alone). Covington & Burling’s website proudly boasts about the firm’s success in urging federal judges to grant its “clients” – 18 enemy combatants – new “rights under the Fifth Amendment and the Geneva Conventions.” Also touted is the firm’s key role in the 2006 Hamdan v. Rumsfeld case, in which the Supreme Court invalidated the Bush military commissions. The lead counsel for Salim Hamdan – Osama bin Laden’s personal driver and bodyguard – was Neal Katyal, a former Georgetown law professor who is now the Justice Department’s Deputy Solicitor General. Holder’s Deputy Attorney General, David Ogden – whose clients included child-pornography producers and pro-abortion extremists – worked at a firm that represented three enemy combatants and that figured prominently in Boumediene v. Bush (2008), in which the Supreme Court granted the alien detainees a U.S. constitutional right to challenge their detention in civilian federal court. The problems go well beyond Holder, Ogden, and their top staffers (drafted from these same firms).[*] Similar conflicts plague, among others, Associate Attorney General Thomas Perrelli (DOJ’s No. 3 official) and the chiefs of both the Criminal and Civil Divisions, Lenny Breuer and Tony West (the latter volunteered his services to represent John Walker Lindh, the so-called “American Taliban,” a U.S. national now serving a 20-year sentence after making war against his country).
It bears observing that the leadership Obama and Holder envision for Justice is not yet fully in place. The Senate has blocked the nomination of an academic, Dawn Johnsen, to lead DOJ’s Office of Legal Counsel. OLC is the lawyers’ lawyer, driving administration legal policy by authoritatively interpreting the law for the Attorney General. Its credibility is derived from its reputation for apolitical, academic discipline – informing policymakers of what the law is, rather than what staffers would like it to be. Despite the Democrats’ filibuster-proof majority, Johnsen has been stalled because she is an unabashed political ideologue. Besides the obligatory tropes about Bush war crimes, she sees the law as a tool for enacting “the progressive agenda”: “universal health care, public funding for childcare, paid family leave, and . . . the full range of economic justice issues, from the minimum wage to taxation policy to financial support for struggling families.” The main impediment to her nomination, however, is her bizarre claim that abortion restrictions (e.g., the denial of public funding) are analogous to violations of the Thirteenth Amendment’s proscription against slavery – an argument she posited in a Supreme Court brief while serving as the legal director of the National Abortion Rights Action League. According to Johnsen, a pregnant woman “is constantly aware for nine months that her body is not her own: the state has conscripted her body for its own ends.” The justices were unmoved, as they were by her equally startling theory that, absent government-provided abortion counseling, many women would be left without “proper information about contraception” – leaving them “losers in the contraceptive lottery [who] no more ‘consent’ to pregnancy than pedestrians ‘consent’ to being struck by drunk drivers.”
Holder has a freer hand with posts that do not require Senate consent. That explains his hiring of Jennifer Daskal, a lawyer with no prosecutorial experience, to work in Justice’s National Security Division. Her qualification? Daskal is a left-wing activist who advocated on behalf of al Qaeda prisoners while serving as the “counterterrorism counsel” (yes, counterterrorism) at Human Rights Watch. She has, for example, claimed that KSM may not be guilty of the unspeakable acts he can’t stop bragging about because, after all, Bush may have tortured him into confessing. She lamented that another detainee, “a self-styled poet,” suffered abuse in U.S. custody when he “found it was nearly impossible to write poetry anymore because the prison guards would only allow him to keep a pen or pencil in his cell for short periods of time.” And she has been a staunch supporter of the terrorist detainee Omar Khadr, who was 15 when he allegedly launched the grenade that killed U.S. Army Sergeant First Class Christopher Speer. Daskal frets that a prosecution would violate Khadr’s “rights as a child.” Khadr recently turned 23.
Holder has assigned Daskal to help shape detainee policy.
* Since I wrote the pamphlet, David Ogden has resigned. The LA Times reported that his departure would take place on February 5 — I don’t know if he has left yet.