UPDATE 7:23 P.M. A White House spokesperson told Main Justice that conversations about Kagan’s possible replacement “haven’t even begun.”

UPDATE 1:17 P.M. The Atlantic’s Marc Ambinder is reportingthat the White House “is poised” to nominate Verrilli as Solicitor General if Kagan is confirmed.

Solicitor General Elena Kagan’s confirmation to the Supreme Court would open one of the Justice Department’s most coveted positions. But the Obama administration wouldn’t have to look very hard, or far, for its next chief advocate.

Three candidates have already been mentioned in Washington legal circles: Preeta Bansal, general counsel to the Office of Management and Budget; Neal Katyal, Principal Deputy Solicitor General; and Donald Verrilli Jr., senior White House counsel.

Bansal, solicitor general of the state of New York from 1999 to 2002, was a finalist for the post at the start of the Obama administration. Lawyers inside and outside the administration expect her to take on a larger role in legal affairs, whether in the White House or in the Justice Department.

She has been general counsel at OMB since January 2009.

Before joining the Obama administration, Bansal was head of the appellate litigation group at Skadden, Arps, Slate, Meagher & Flom LLP. In the Clinton administration, she held positions in the White House counsel’s office, and in the Justice Department’s Office of Policy Development (now the Office of Legal Policy) and Antitrust Division.

In a nice bit of symmetry, Bansal (Harvard-Radcliffe College, Harvard Law School) clerked for Justice John Paul Stevens.

For more on Bansal, click here.

Neal Katyal (DOJ)

Katyal, the Kagan’s top deputy, joined the Solicitor General’s Office in January 2009, and has argued six cases before the high court as a government attorney.

As a Georgetown University law professor, Katyal successfully argued the landmark detainee rights case Hamdan v. Rumsfeld , in which a 5-3 majority on the Supreme Court found that the Bush administration’s military commissions violated the Uniform Code of Military Justice and the Geneva Conventions.

Katyal (Dartmouth College, Yale Law School) served in the Clinton administration as national security adviser to then-Deputy Attorney General Eric Holder.

Katyal clerked for Justice Stephen Breyer.

For more on Katyal, click here.

Then-Associate Deputy Attorney General Donald Verrilli at a panel at American University in November. (Photo by Ryan J. Reilly / Main Justice)

Verrilli joined the Justice Department as an Associate Deputy Attorney General in February 2009 and moved over to the White House earlier this year, as senior counsel. While at Justice, he focused on civil matters, including oversight of a review of the department’s use of the controversial state secrets privilege.

Before joining the administration, he was co-chair of Jenner & Block LLP’s firm’s appellate and Supreme Court practice, with a client list that included Viacom and the Motion Picture Association. His move to the Justice Department, after 21 years at Jenner, surprised some in Washington legal community who felt he was overqualified for an associate slot.

But the thinking was that if Kagan were nominated, Verrilli (Yale University, Columbia Law School) would make an excellent Solicitor General. And here we are.

Verrilli clerked for the late Justice William Brennan Jr.

For more on Verrilli, click here.

Associate Deputy Attorney General Donald Verrilli at a panel at American University today (Photo by Ryan J. Reilly / Main Justice).

The Obama administration inherited approximately 20 state secrets cases from the Bush administration and is working to develop a stricter definition of the controversial legal privilege, Associate Deputy Attorney General Donald Verrilli said Wednesday.

The administration wants to ensure the privilege is only invoked when there are legitimate national security concerns, Verrilli said at a forum Wednesday.

Still, he acknowledged there has not been a bottom-line change from the Bush administration on the privilege, which the government can invoke to keep information out of public court records if it is deemed to be harmful to national security.

Speaking as part of a panel at American University’s Washington College of Law, Verrilli said the administration was working towards a “narrow tailoring” of the state secrets privilege. The goal is to assert it “to the minimal extent necessary,” he said, adding that as a matter of policy, the administration would not assert the privilege to cover up government wrongdoing.

But critics say they expected more from President Barack Obama, who campaigned against perceived Bush-era civil liberties abuses. They also worry that the internal executive policy of justifying the use of the states secrets privilege on a number of levels wouldn’t be binding on future administrations. The critics want Congress to act.

Sharon Bradford Franklin of the Constitution Project (Photo by Ryan J. Reilly / Main Justice)

“We’ve pulled back from the brink, but there’s still a long way to go,” said Sharon Bradford Franklin, senior counsel to the Constitution Project. “It’s a welcome development, but really is the first small step.”

Bradford said there is a need to reassert the role of the courts to provide a check on the executive branch when it comes to the state secrets privilege.

She also said it was important to make sure the executive branch is not policing itself. Secrecy and over-classification has been an issue in the government for years, said Bradford.

Verrilli sits on a task force of senior Department of Justice officials that was asked by Attorney General Eric Holder earlier this year to review every pending case in which the states secrets had been invoked. The panel has spent a large amount of time on the issue, said Verrilli, who noted that he went into it with an “extremely skeptical point of view.”

Verrilli said the problems with invoking the state secrets privilege are a potential lack of public confidence in a court’s result when information is withheld. He also said there is a potential erosion of the value of the court system if a case cannot proceed because the government invokes the privilege, said Verrilli.

“Those costs are real and they’re serious and we acknowledge that they exist here, and the question for us is what can we do to address that set of problems that exist here,” said Verrilli.

Verrilli said the DOJ task force has tried to set up a system of accountability. Credible allegations of wrongdoing by government officials require referrals of the allegations to the Inspector General office of the agency whose conduct is at issue. The administration is also committed to robust congressional oversight, said Verrilli.

“While it’s not a perfect substitute, it’s our hope it will be an important mechanism,” said Verrilli.

Benjamin Wizner, counsel to the National Security Project of the American Civil Liberties Union (Photo by Ryan J. Reilly / Main Justice).

Benjamin Wizner, counsel to the National Security Project of the American Civil Liberties Union, noted the panel’s topic was the Obama administration’s emerging position on the state secret privilege and how it differs from the Bush administration.

“We can address that pretty quickly, it hasn’t” changed, said Wizner. “It’s been pretty much the same.”

Wizner said overly broad secrecy claims amount to immunity for the government. He said that immunity was not simply the effect of, but rather the intent of, the government in many cases in which it invoked the state secrets privilege.

“We do not have a single judicial opinion that rules on whether the Bush administration’s torture program was legal,” Wizner said.

Verrelli also said that the Obama administration doesn’t have a position on reform legislation from Rep. Jerrold Nadler (D-N.Y.), chairman of the House Judiciary Committee’s Constitution subcommittee. Nadler gave the keynote speech at the forum Wednesday morning.

“We’re engaged in a dialogue, it’s ongoing and it will continue,” said Verrelli.

Five lawyers who’ve represented the Recording Industry Association of America have been tapped for high-level Department of Justice jobs, to the dismay and outrage of electronic freedom activists.

Ian Gershengorn (Jenner & Block)

Monday’s news that Ian Gershengorn would be deputy assistant attorney general of the Civil Division is the latest affront to information freedom activists. Gershengorn served two years in the Clinton DOJ as special assistant and counsel to Deputy Attorney General Jamie Gorelick, and as assistant to Attorney General Janet Reno. See our previous post on the mounting controversy here.

Says Wired:

Gershengorn, a partner with RIAA-firm Jenner & Block, represented the labels against Grokster (.pdf) and will be in charge of the DOJ Federal Programs Branch. That’s the unit that just told a federal judge the Obama administration supports monetary damages as high as $150,000 per purloined music track on a peer-to-peer file sharing program.

The other new DOJers who represented the recording industry in private practice include ex-Jenner & Block lawyers Tom Perrelli, Donald Verrilli, Brian Hauk and Ginger Anders.

Perrelli is Associate Attorney General, the department’s number three official; Verrilli is associate deputy attorney general; Hauk is counsel to the associate attorney general; and Anders was tapped as an assistant to the solicitor general.

Advocates of fewer barriers to the exchange of information in the digital age asked President Barack Obama in a letter to stop staffing his administration with the likes of Tom Perrelli and Donald Verrilli. While partners at Jenner & Block, the now-high ranking DOJ officials specialized in copyright protection cases on behalf of content-owners including the Recording Industry Association of America and the motion picture industry.

The letter from the Wikipedia Foundation, the American Library Association and other interest groups didn’t name Perrelli, now the Associate Attorney General, and Verrilli, an Associate Deputy Attorney General. But it referenced them.

 The Electronic Frontier Foundation, also a signatory, posted the letter here on their web site. The money quote:

[T]wo of the most senior officials in the Department of Justice represented the recording industry in litigation for many years. The fact that these individuals were litigators rather than registered lobbyists does not diminish the possibility that they may be inclined favorably towards the positions of the industries they long represented. Recent developments like the Justice Department’s intervention in

Sony BMG v. Tenenbaum in favor of the plaintiff record label heighten these concerns.

The Department of Justice intervened in an ongoing copyright infringement case today on behalf of the recording industry, continuing the Bush Administration’s defense of harsh civil penalties for individuals involved in peer-to-peer internet sharing.

The administration, filing a motion to intervene in favor of the plaintiff in Massachusetts district court case Sony BMG Music Entertainment v. Tenenbaum, defended the ability of record companies to sue individuals who leak content online for statutory damages that can be more than a thousand times larger than the cost of the initial crime. The Bush administration had taken a similar stance in 2007, when it had intervened in Capitol v. Thomas, arguing that a $222,000 fine for illegally downloading 24 songs passed Constitutional muster. 

The move comes as a surprise to supporters of Obama who thought the new administration would change the former president’s support of restrictive copyright infringement penalties. Proponents of more permissive copyright law, including Google CEO Eric Schmidt and noted Internet activist Lawrence Lessig, had praised Obama during the campaign for his support of less stringent regimes like Creative Commons.

As President, however, Obama has not garnered the same applause from opponents of the Recording Industry Association of America (RIAA), after appointing two former copyright lawyers to top positions in the Justice Department. Tom Perrelli, who represented the RIAA in private practice at Jenner & Block, was recently confirmed as associate attorney general, the number three position at DOJ. Another Jenner & Block partner, Donald Verrilli, who represented Viacom in their copyright infringement case against YouTube and the RIAA, was named associate deputy attorney general. Verrilli, for his part, withdrew from involvement in the case last week, citing a perceived conflict of interest. But critics see a connection between the appointments and the Obama administration’s decision to intervene.