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Did Holder stiff Senate on Justice Dept. lawyers who defended jihadis?
By: Byron York
Chief Political Correspondent
11/19/09 2:00 AM EST
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Some Republicans on the Senate Judiciary Committee were taken aback Wednesday by Attorney General Eric Holder's refusal to reveal conflicts of interest involving Justice Department lawyers who, before joining the Obama administration, worked on behalf of Guatanamo detainees.
One reason it has taken so long to deal with the Guantanamo cases is the number of legal challenges lodged by lawyers for the detainees, some of whom are now working on detainee matters in the Obama Justice Department. At Wednesday's Judiciary Committee hearing, amid discussion of Holder's decision to grant 9/11 mastermind Khalid Sheikh Mohammed full American constitutional rights, the issue was brought up by Republican Sen. Charles Grassley, who told the attorney general:
I want to know more about who is advising you on these decisions. There are attorneys at the Justice Department working on this issue who either represented Guantanamo detainees, or worked for groups who advocated for them. This prior representation I think creates a conflict of interest problems for these individuals.
Grassley brought up the case of Neal Katyal, who is now the Principal Deputy Solicitor General. Katyal, formerly a law professor at Georgetown University, worked on legal challenges to the Military Commission Act -- he represented Osama bin Laden's driver -- and is reportedly still working on detainee questions at the Justice Department. Other department lawyers represented other detainees. "I want to know more about these potential conflicts," Grassley told Holder:
Would you provide me and members of the committee with the following information? The names of political appointees in your department who represent detainees or who work for organizations advocating on their behalf? The cases or projects that these appointees work with respect to detainee prior to joining the Justice Department? And the cases or projects relating to detainees that have worked on since joining the Justice Department? Would you please provide that information to me and the committee?
It seemed a reasonable request, but Holder appeared decidedly cool to the idea. "Yes, I will certainly consider that request," he said. "But I want to make sure that you understand that the people in the department understand their ethical obligations. And to the extent that recusals are appropriate on the basis of prior representations or prior connections, people in the department have recused themselves from specific cases."
"But I asked you for information," Grassley responded. "Will you provide it?"
"I will consider that request," Holder repeated, adding that the lawyers involved are "fine public servants" and "patriots" who have "national security uppermost in their minds."
Grassley still wanted an answer. "The very least you can give me is a list of the recusals," he said.
"I will consider that," Holder said again.
To Republicans, it appeared that Holder was stiffing Grassley on a legitimate matter of oversight. "It certainly came across that way," says one GOP aide. Before the hearing was over, Holder apparently thought better of his position.
"I didn't mean to be flip when I said that I would consider the request about turning over the names of people who had previous representations that might conflict with their duties as Department of Justice attorneys," Holder told the committee:
When I said I would "consider," I only meant to say that I don't know if there are ethical concerns with regard to attorney-client privilege and things of that nature, and I need to consider those before I would actually be able to respond to the question. So I didn't mean to say that I was not being -- trying not to be responsive or not taking seriously a question that was posed I guess initially by Senator Grassley…I just wanted to talk to the experts back at the department about whether there was an ethical concern in responding to the question.
Grassley accepted the explanation -- sort of. But he wants the information. "Sen. Grassley expects Attorney General Holder to respond fully to all requests from committee members, including the important requests for ethics recusals discussed at today's hearings," a Grassley spokesman said after the hearing. "Those requests should be complete and timely."
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