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EDITORIAL EXCLUSIVE: On terrorists, Justice recused

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The Obama Justice Department is having problems prosecuting terrorist cases because top department attorneys have conflicts of interest.

According to documents obtained exclusively by The Washington Times, Associate Attorney General Thomas J. Perrelli, No. 3 official in the Justice Department, had to recuse himself on at least 13 active detainee cases and at least 26 cases listed as either closed or mooted.

Sen. Charles E. Grassley, Iowa Republican, made waves Nov. 18 when he demanded that Attorney General Eric H. Holder Jr. provide a list of all the suspected-terrorist detainee cases from which current Justice Department political appointees have had to recuse themselves. The extent of the conflicts at the department is still unclear.

Mr. Perrelli's recusals presumably stem from the work that either he or his former firm, Jenner & Block LLP, did on behalf of detainees while Mr. Perrelli served on the firm's management committee and on its appellate and Supreme Court practice groups. And Mr. Perrelli is just one official; a number of other Justice Department officials apparently did private-sector work on detainee cases.

This is an important topic. Even if each official who did prior work on detainee cases has indeed properly recused himself from those cases while at the Justice Department, there could be such a large number of affected officials that the department's prevailing ethos could be tilted strongly in the detainees' favor. Mr. Grassley's inquiry is pressing because it could ferret out any instance in which a department official should have been recused but wasn't.

When the senator publicly requested information from Mr. Holder, the attorney general merely promised to "consider" the request. After some hemming and hawing and dodging, Mr. Holder eventually said he needed to make sure there was no "attorney-client privilege" involved before disclosing the list of recusals. This is absurd. Attorney-client privilege may extend to the substance of lawyers' discussions with detainees, but not to the mere question of whether the lawyers are doing such work.

While the rest of the list of recusals has yet to be provided to the senator, The Washington Times secured the Perrelli recusal list, which previously had been distributed widely within the Justice Department. Herewith, consider this list of names of detainees whose cases are listed as "active" on the Perrelli recusal list:

Saad Al Qahtani. Mohammed Zahrani. Achraf Salim ("Sultan") Abdessalam. Abdul Rahman Abdul Abu Ghityh Sulayman. Musaab Omar Al Madhwani. Jawad Jabbar Sadkhan (Al Sahlani). Majid Khan.

Also listed as active are the cases of Anam v. Bush, Jabbarov v. Bush, Bronte v. Department of Defense, Al Odah et. al. v. USA, Boumediene v. Bush, and Rumsfeld v. Padilla.

None of this is to say that Mr. Perrelli did anything wrong. His recusals are proper, but the extent of the recusals raises questions about whether the attorney general has enough unbiased advisers around him to have made good judgments about how to try Khalid Shaikh Mohammed and other detainees. He certainly did seem terribly ill-informed when asked basic questions at the Senate Judiciary Committee hearing on Wednesday about how Miranda rights for detainees would be treated in civil courts and if any enemy combatant from a foreign battlefield had ever been tried in American civil courts. Columnist Charles Krauthammer justly called Mr. Holder's responses "utterly incoherent." If the incoherence stems from an inherent bias among President Obama's appointees at the Justice Department, senators and the American public have the right to know it.

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