The Obama administration promised Americans an era of unprecedented transparency in the operations of government. At his confirmation hearing and in subsequent testimony, Attorney General Eric Holder professed a desire to work openly and cooperatively with Congress. Given all that, why is Holder stonewalling Senate Republicans on their demand that he identify the political appointees in his Justice Department who have represented or advocated on behalf of the terrorists detained at Guantanamo Bay?
After months of delay, Holder finally deigned last week to provide a response that was more like a rebuke. He conceded that “at least nine” Justice Department officials had formerly represented the detainees. But even Holder admitted he was low-balling. He hadn’t, he said, made a complete survey of DOJ political appointees (i.e., the thing he was asked to do). Even if he had made the rounds, moreover, the number nine would have been an understatement. It counts only lawyers who directly represented the terrorists, not lawyers — like Holder himself — whose former firms volunteered their services to the detainees even if they did not personally do the work.
Holder was a senior partner at a Washington firm (Covington & Burling) that proudly boasts of having represented 18 enemy combatants. Working for America’s enemies was its most heavily resourced “pro bono” (no-fee) project, to which it donated thousands of hours of work (3,022 hours in 2007 alone). Holder did not directly handle the cases. Yet, while his firm banged away on them, he made public statements accusing the United States of having “denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the use of procedures that violate both international law and the United States Constitution.”
Holder has chosen to staff his Justice Department with lawyers who not only voluntarily represented the detainees but tirelessly advocated for them. To help shape detainee policy, for example, he brought in Jennifer Daskal, a lawyer with no prosecutorial experience. Daskal’s apparent qualification for the job was her work on behalf of the detainees as the “senior counterterrorism counsel” at the leftist Human Rights Watch. There, when not citing the United States to the U.N. for our nation’s purportedly inhumane operation of supermax prisons and the Guantanamo Bay detention camp, Daskal spoke on behalf of Khalid Sheikh Mohammed and other terrorists, insisting they’d been tortured (an allegation Holder echoed in his public statements), that their confessions had been coerced, and that their rights to due process had been grossly violated.
The Republican senators had asked Holder to identify: the DOJ lawyers who had represented detainees, the names of those detainees, and the duties those lawyers currently have at DOJ — including any responsibility for terrorism and detainee policy. Holder coughed up only two names: Daskal, who is already notorious, and Deputy Solicitor General Neal Katyal, whose work was already well known because it involved representing Osama bin Laden’s personal driver and bodyguard, Salim Hamdan, in one of the Supreme Court’s most important terrorism cases.
Holder refused to give any more names or details. He gave no explanation for the refusal to disclose this information. Indeed, he was glibly dismissive, telling the lawmakers not to be concerned because “all department appointees understand that their client is the United States.”
We’re sure they do, but they’re not serving their client well by returning our country to the September 10 approach to counterterrorism, meaning prosecution in the civilian courts. In such an approach, the Justice Department is the most significant agency. With the United States still at war and our enemies still plotting to carry out more 9/11s, the American people are entitled to know what attorneys at the Justice Department worked for the enemy combatants detained at Gitmo.