Senator Charles Grassley, Republican of Iowa, has been relentless in trying to determine which lawyers at the Department of Justice previously defended, advocated for or worked on issues pertaining to Guantanamo Bay detainees and other alleged terrorists. While he’s at it, he may want to expand his inquiry — to the halls of the White House itself.
At least two attorneys hired to serve in the White House counsel’s office — part of President Obama’s in-house team of legal advisers — represented Guantanamo detainees in their previous legal careers.
While an associate at the Washington office of the prestigious law firm Wilmer Cutler Pickering Hale & Dorr, Michael Gottlieb — tapped for a White House associate counsel position — was part of the team that successfully argued on behalf of alleged terrorist Lakhdar Boumediene (of Boumediene v. Bush fame).
And while a student at Yale Law School, one of Gottlieb’s fellow associate counsels, Jonathan Kravis, volunteered his time as part of the team that ultimately secured legal victory for alleged Yemeni terrorist Salim Hamdan in Hamdan v. Rumsfeld.
Both Hamdan and Boumediene were landmark Supreme Court cases involving the legal rights of enemy combatants and the constitutionality of the procedures used to detain and try them. The first involved Salim Hamdan — a Yemeni held at Guantanamo after having been captured in Afghanistan in November 2001 — who was charged with committing acts in furtherance of a terrorist conspiracy, including serving as Osama bin Laden’s personal bodyguard and driver, and training at al Qaida camps. Hamdan and his lawyers — led by the Obama administration’s current principal deputy solicitor general, Neal Katyal — argued that the military tribunal convened to try Hamdan was unconstitutional. In 2006, the Supreme Court ruled in Hamdan’s favor, forcing Congress to enact legislation approving of the military commissions.
Two years later, in Boumediene, the court ruled that Congress’s legislation — the Military Commissions Act of 2006 — was insufficient. In a 5-4 ruling, the court found that Boumediene — an enemy combatant captured in Bosnia and sent to Guantanamo on suspicion of conspiring to blow up the U.S. and British embassies in Sarajevo — was entitled to habeas corpus rights under the U.S. Constitution, even though he was a foreign national being held on foreign soil. A part of the Military Commissions Act was declared unconstitutional; a precedent was established whereby unlawful enemy combatants could challenge their detentions in U.S. civilian courts, and Boumediene and four of his five co-petitioners, Algerian-born Bosnians all, were eventually released.
On its Web site, WilmerHale promotes the work Gottlieb and others did on behalf of Boumediene and his co-petitioners, noting, “WilmerHale has secured several landmark victories on behalf of six Bosnian-Algerian prisoners held at Guantanamo Bay since January 2002.” The firm began representing the six detainees in 2004; the lead counsel on the case was WilmerHale partner Seth Waxman. He was joined on Boumediene’s Supreme Court brief by several other firm lawyers — including Michael Gottlieb. (Another, former WilmerHale partner Jonathan Cedarbaum, has been appointed by the Obama administration to the Justice Department’s Office of Legal Counsel.)
The firm boasts that “the Boumediene case is WilmerHale’s largest pro bono effort” in its history, adding: “Since WilmerHale lawyers became involved in the case, they have visited the Guantanamo Bay detainees over a dozen times; gone on investigatory visits to Bosnia; conducted meetings with government officials of various countries, both in Washington and Europe, and developed numerous court filings in U.S. courts in Washington, D.C. and Boston and in the European Court of Human Rights in Strasbourg, France.” When asked about which of these activities Gottlieb participated in, a spokeswoman for the firm, Jennifer O’Shea, was unable to provide further comment.
Jonathan Kravis’s detainee advocacy, meanwhile, dates to his extracurricular activities as a student at Yale Law school. According to Jonathan Mahler’s The Challenge: Hamdan v. Rumsfeld and the Fight Over Presidential Power, as well as the Yale Law Report, Kravis was one of the students enlisted by Katyal (then a visiting professor at Yale) to help prepare Hamdan’s initial lawsuit. Mahler notes that in an e-mail to Kravis and three other students, Katyal promised, “each of you would get to draft parts of the brief and kick around strategy on one of the most serious constitutional issues we have ever faced in our lives.” The White House clarified that Kravis’s participation in the case was as a third-year law student, and that he contributed research and writing to the Hamdan brief presented before the district court.
According to biographies released by the White House, Kravis was hired in January 2009 from the U.S. Attorney’s Office for the District of Columbia; Gottlieb was tapped at the same time from the U.S. Attorney’s Office for the Central District of California, where he worked following his tenure at WilmerHale. People familiar with the White House Counsel’s Office describe their positions — associate counsels — as fairly senior, noting that the attorneys usually provide substantial legal guidance to the White House counsel and to the president.
A White House spokesman, Ben LaBolt, declined to describe the portfolios of Kravis and Gottlieb (including whether they worked on detainee issues or other security matters, or whether either had to recuse himself from work in these areas). “To imply that lawyers share the views of their clients represents a fundamental misunderstanding of their professional duties and the American justice system,” LaBolt added.
Still concerned, however, is Senator Grassley, who said in a statement to The Daily Caller: “We’re talking about the public officials making high-stakes decisions involving national security. They hold a public trust, and the American people have a right to know who they are and what their background is.”
“A number of these questionable decisions [on terrorism cases] made by the administration appear to be made on the fly, not seriously thought through,” the senator added. “Americans are worried.” Grassley would like to see the White House be “open and transparent with the American people about the people who are advising him on these decisions.”
The senator’s concern is part of a long-running effort to determine who in the Obama administration may have what he describes as “conflicts of interest” regarding detainee policy and other matters pertaining to terrorism and national security.
Grassley’s campaign began in November, during a hearing on Capitol Hill in which Attorney General Eric Holder testified. Citing press reports showing that two DOJ political appointees — Katyal and Jennifer Daskal — had previously worked on behalf of alleged terrorists and Guantanamo detainees, Grassley pressed Holder to reveal the names, previous clients and current responsibilities of DOJ lawyers who had worked on detainee issues.
Grassley is still waiting for a satisfactory response. Last month Holder wrote Grassley indicating that at least nine DOJ employees had previous experience working on detainee issues, but identified by name only the two Grassley had already mentioned. The reply “rais[ed] more questions than it answer[ed],” according to Grassley, who was joined by his fellow Judiciary Committee Republicans in writing a spirited letter to Holder last week, pressing for more answers.
The apparent evasion by DOJ has also stirred public anger. Keep America Safe, the national-security organization led by former Vice President Cheney’s daughter Liz Cheney, has released an ad demanding that Holder reveal the identities of the “al Qaida Seven.” On Wednesday, amid the growing outcry over DOJ’s secrecy, Fox News disclosed the seven lawyers’ identities and previous casework.
Some have taken issue with the push to identify the lawyers at DOJ, including one critic who called the effort “McCarthyism.” Others note that everyone — even an alleged terrorist — is entitled to a defense. One question often raised, however, is about the motives of private-sector attorneys who can choose their pro bono activities (or, in Kravis’s case, a law student trying to allocate out-of-class time) and decide to expend their efforts on behalf of enemy combatants. The other is whether it is appropriate for people who made those decisions to serve in a public capacity, and provide legal advice to a president charged with fighting the war on terror.
Within the halls of Obama’s White House, the answer, it appears, is “yes.”