- The Washington Times - Monday, June 22, 2009

ANALYSIS/OPINION:

A deal is in the works to send Yemeni detainees from Guantanamo Bay, Cuba, to Saudi Arabia, but don’t ask the attorney general about it.

Executive Order 13493 on Jan. 22 appointed Attorney General Eric H. Holder Jr. co-chairman of the Special Task Force on Detainee Disposition, the interagency group charged with determining the status of persons captured or apprehended in connection with armed conflicts and counterterrorism operations. But according to Justice Department regulations, Mr. Holder is required to recuse himself from certain detainee matters because his law firm represented the detainees.

The Legal Times reported in March that there are more than a dozen such conflicted lawyers at the department. This includes five of the top 10 officials in the department, including the attorney general; Deputy Attorney General David W. Ogden; Associate Attorney General Thomas J. Perrelli; Assistant Attorney General for the Civil Division Tony West; and Lanny A. Breuer, chief of the Criminal Division, who, like Mr. Holder, hails from the firm Covington & Burling LLP.

Justice Department lawyers who worked at firms representing detainees have been advised to refrain from handling related matters even if the lawyers were uninvolved in their firm’s work related to the U.S. military detention facility at Guantanamo. This is a stricter standard than that required by the American Bar Association’s Rules for Professional Conduct, which would only require recusal in cases in which the attorney was “personally and substantially involved” in the case. The natural conflict of interest is that lawyers whose firms do pro bono work on behalf of detainees should not also make detainee policy.

Covington & Burling represented 17 detainees from Yemen. There are about 200 Yemenis still at Guantanamo. One reason for the large number of Yemenis is that Yemen does not have facilities to hold them. It’s also relevant that previous released detainees have used Yemen as a gateway to return to terrorism. This is why we want to send them to Saudi Arabia, although Yemen’s government denies the deal is done.

Covington’s detainee work has caused the firm some embarrassment. The firm’s David H. Remes made headlines in 2008 by removing his pants at a news conference in Yemen to protest what he said were inappropriate body searches. He left the firm shortly thereafter. Former Covington attorney Marc D. Falkoff represented Kuwait-born Abdullah Saleh al-Ajmi and included poetry written by the inmate in an anthology he co-edited in 2007: “Poems From Guantanamo: The Detainees Speak.”

Mr. Falkoff described the poets as “gentle, thoughtful young men” whose verse was free of hatred. As Debra Burlingame reported in the Wall Street Journal, Abdullah was released in 2005 and next heard from in a martyrdom video posted on an al-Qaeda Web site celebrating his suicide truck bombing of an Iraqi Army compound in Mosul. This gentle poet killed 13 soldiers and wounded 42 others in the attack.

The law firms that worked aggressively on the part of detainees avoided public censure because George W. Bush administration policies made America so safe it was easy to cast the detainees in the role of victims rather than killers. Contributing factors were Guantanamo’s remoteness and isolation and the failure of the Bush team to make these anonymous, numbered, orange-jump-suited men into recognizable public enemies by highlighting their violent biographies. This created a vacuum that the defense lawyers were willing to fill with tales of innocent victims of circumstance swept up in events beyond their control.

The politics of detainees and world opinion trumped the issue of safety and security of the American people. Firms that spearheaded this process provided the personnel who now run the Department of Justice. It is no wonder that — as the former commander of the USS Cole, Cmdr. Kirk Lippold, notes on the facing page — the rights and treatment of detainees are being given paramount consideration by the Obama administration.

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