Solicitor General and Supreme Court nominee Elena Kagan notified the court on Monday that Neal K. Katyal will now serve as Acting Solicitor General.
In a filing, Kagan wrote that Katyal should be listed as Acting Solicitor General “in all filings after the date of my nomination involving the United States Government.” The move would protect Kagan from future conflicts if her nomination is confirmed by the Senate.
Katyal, 40, has served as Principle Deputy Solicitor General. He was a professor at Georgetown University and represented Guantanamo Bay detainees in the case Hamdan v. Rumsfeld. Katyal argued that military commissions set up by the George W. Bush administration violated the four Geneva Conventions.
Since joining the Justice Department last year, Katyal successfully defended the Voting Rights Act in Northwest Austin v. Holder.
Katyal was an undergrad at Dartmouth and graduated from Yale University Law School. He is one of a handful of potential Solicitor General nominees should Kagan be confirmed to the Supreme Court.
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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.
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.
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.
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Fox News has identified the seven anonymous Justice Department lawyers who previously represented Guantánamo detainees or terrorism suspects.
Justice Department spokesman Matthew A. Miller confirmed the names to Fox News’ Mike Levine, but did not say whether any of the seven previously anonymous lawyers now work on issues related to Guantánamo detainees.
“Each of the nine people referenced in the letter filed legal briefs that are available by using something as simple as Google,” Miller told Fox News. “We will not participate in an attempt to drag people’s names through the mud for political purposes.”
Miller said “politics has overtaken facts and reality” in the battle over the lawyers’ identities. (Full statement below)
The current Justice Department employees who previously represented Guantánamo detainees or terrorism suspects are:
- Tony West, the Assistant Attorney General for the Civil Division.
- Jonathan Cedarbaum, of the Office of Legal Counsel.
- Eric Columbus, senior counsel in the Office of the Deputy Attorney General.
- Karl Thompson, of the Office of Legal Counsel.
- Joseph Guerra, Principal Deputy Associate Attorney General.
- Tali Farhadian, an official in the Office of the Attorney General.
- Beth Brinkmann, Deputy Assistant Attorney General in the Civil Division.
Two other DOJ lawyers — Principal Deputy Solicitor General Neal Katyal and National Security Division Attorney Jennifer Daskal - also formerly represented detainees, but their identities had already been known.
In response to the DOJ confirmation, Keep America Safe spokesman Aaron Harison said the organization still wants information on which of the lawyers works on detainee issues within the DOJ.
“The American people have a right to know whether lawyers who voluntarily flocked to Guantanamo to take up the cause of the terrorists are currently working on detainee issues in President Obama’s Justice Department,” Harison said. (Full statement below)
Details about the DOJ lawyers’ involvement in Guantánamo detainee cases are available in the article, which also points out that the Justice Department hired several lawyers who represented Guantánamo detainees during the George W. Bush administration.
Main Justice’s previous coverage of the controversy:
- DOJ Info Center Swamped With Calls After Cheney Ad Released
- Spokesman: Ad Only Questioning Pro Bono Lawyers
- Around the Web: Reaction to Cheney Video
- Conservative Group’s Ad Hammers Holder on Detainee Lawyers
- GOP: Holder “Intentionally Evasive” on Lawyers with Detainee Ties
Miller’s full statement:
“On February 18, the Department sent a letter to Senators about political appointees who were involved in detainee-related litigation before joining the Department. As the letter stated, Department attorneys are subject to ethics and disclosure rules as required under both Department guidelines and the administration’s own ethics rules, which are the strongest in history.
“In the time since we sent that letter, politics has overtaken facts and reality. Each of the nine people referenced in the letter filed legal briefs that are available by using something as simple as Google. The names the Department is being asked to disclose are already in the public record, and can be easily found by anyone.
“We will not participate in an attempt to drag people’s names through the mud for political purposes. One of the hallmarks of our nation’s legal system is that attorneys provide faithful representation to all sorts of clients. As John Roberts said at his confirmation hearings, it is wrong to identify lawyers with the client or the views the lawyer advances for the client, and our history is replete with such examples, from John Adams representing British soldiers to Department of Defense JAG lawyers representing Guantanamo detainees. Department of Justice attorneys work around the clock to keep this country safe, and it is offensive that their patriotism is being questioned, just as it was offensive when people questioned the patriotism of JAG lawyers representing detainees or the Supreme Court Justices who, by majority votes, ruled in favor of detainees in cases during the previous administration.”
Keep America Safe spokesman Harison’s full statement:
“Today, after much public outcry, the Department of Justice finally and reluctantly disclosed the names of the Al Qaeda Seven. We regret that they still refuse to tell the American people whether any of these lawyers are currently working on detainee issues inside the Department. The American people have a right to know whether lawyers who voluntarily flocked to Guantanamo to take up the cause of the terrorists are currently working on detainee issues in President Obama’s Justice Department. Attorney General Holder’s assertion that hiring former terrorist lawyers is just like hiring lawyers who used to defend white collar criminals demonstrates once again that, despite the President’s rhetoric, the Obama Administration does not understand the dangers of treating terrorism like a law enforcement matter.”
This story has been updated.
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Keep America Safe, the conservative non-profit founded by Liz Cheney and Bill Kristol, released a video Tuesday slamming Attorney General Eric Holder for not naming seven current Department of Justice attorneys who represented alleged terrorist detainees before joining the administration.
Set to foreboding music, the ad questions the loyalties of the so-called “Al-Qaeda Seven,” ominously depicted as seven shadowy figures standing in front of a background of jihadist images.
Keep America Safe employs several conservative supporters who support the terrorism policies of former President George W. Bush. The organization receives financial backing from Melvin Sembler, a conservative fundraiser. Michael Goldfarb, a spokesman for Republican John McCain’s 2008 presidential campaign, also serves as a political strategist.
The 501 (c) group has been needling Holder on the issue for months after he disclosed that nine DOJ employees who previously represented detainees or who worked for organizations that advocate changes to terrorism policies. The names of two of the nine are already known; Principal Deputy Solicitor General Neal Katyal formerly represented Osama bin Laden’s driver, and Jennifer Daskal represented detainees during her time at Human Rights Watch.
At a hearing in November, Sen. Charles Grassley, R-Iowa, brought up Katyal and Daskal’s work on behalf of detainees and questioned Holder on the issue. Grassley asked for the names of the lawyers, along with any projects related to detainees they have worked on since joining the DOJ.
Holder declined to disclose the names of the remaining seven appointees, offering a talking point for Republicans. In response, Holder said that it was not uncommon for the Justice Department to hire lawyers who had worked for the other side, citing examples of lawyers in the Tax Division who had represented defendants in tax litigation against the DOJ.
The Keep America Safe video closes by showing a DOJ phone number and urging viewers to call the department and demand that Holder disclose the seven names.
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In a letter Friday, Republicans on the Senate Judiciary Committee accused Attorney General Eric Holder of being “non-responsive and intentionally evasive” about questions they had raised concerning current Justice Department lawyers who previously represented Guantanamo detainees.
The letter, first reported by ABC News, was signed by all seven Republican members of the committee. In it, they again asked Holder to provide a list of all political appointees within the DOJ who represented detainees before joining the department or those who worked for organizations that advocate changes to terrorism policies. The senators also asked whether any of the lawyers who had previously represented or advocated for detainees had been asked or voluntarily agreed to recuse themselves from working on detainee issues for the DOJ.
Sen. Charles Grassley, R-Iowa, first questioned Holder about potential conflicts of interest for lawyers who previously worked with detainees during a November oversight hearing. In response to Grassley’s questioning, Assistant Attorney General Ronald Weich replied in a Feb. 18 letter that 10 politically-appointed DOJ lawyers fit his description. Six had represented detainees and four previously advocated on detainee issues, although none as registered lobbyists, he said. Weich noted in particular that Principal Deputy Solicitor General Neal Katyal previously represented a Guantanamo Bay detainee and that Jennifer Daskal, an attorney in the National Security Division, previously worked for Human Rights Watch, an international human rights organization that advocates against torture.
In the letter Friday, the senators chastised the department for not providing a full list of names.
“The February 18 response does not provide complete answers and raises a host of new questions,” the letter reads. “Simply put, this letter is at best nonresponsive and at worst, intentionally evasive.
The letter added that the lack of a complete response leaves them with “serious concerns about who is providing advice on detainee matters.”
The senators requested that Holder reply to the questions before March 12.
UPDATED 3/9/10: An earlier version of this post incorrectly stated that Holder is scheduled to appear before the Senate Judiciary Committee on March 12. The Republican senators asked Holder reply to their questions by March 12. The committee plans to hold an oversight hearing with Holder sometime in March, but a date has not yet been set.
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Senate Judiciary Committee Republicans today sent a letter to Attorney General Eric Holder, asking him to disclose information about Justice Department political appointees who are working on terrorism and detainee issues.
The letter comes a week after Sen. Chuck Grassley (R-Iowa) asked Holder at a Senate oversight hearing to clarify the work histories and potential conflicts of DOJ officials working on detainee issues.
The committee Republicans also have asked Holder to say whether Justice Department officials who in the past represented detainees or lobbied on detainee rights have requested or received ethics waivers to continue to work on those issues.
At last week’s hearing Holder said he would consider the Republicans’ request, but didn’t promise to provide the information, frustrating Grassley. Holder later said he wasn’t trying to be unresponsive. The Attorney General said he needed to speak with DOJ officials first to ensure he wasn’t disclosing privileged information by responding to Grassley’s inquiries.
The Iowa senator, who is up for reelection next year, cited news reports at the hearing that said Principal Deputy Solicitor General Neal Katyal and National Security Division prosecutor Jennifer Daskal are working on terrorism issues at DOJ, despite possible conflicts of interest.
Katyal represented Osama bin Laden’s driver before he became Principal Deputy Solicitor General in January. Daskal was a senior counsel for Human Rights Watch, a nonprofit human rights organization, which supports legal rights for detainees.
“… I want to make sure that you understand that the people in the department understand their ethical obligations,” Holder told Grassley at the hearing. “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.”
The request is one skirmish in the larger political battle Republicans are waging against Holder’s decision to have alleged 9/11 plotter Khalid Sheikh Mohammed and four other suspected terrorists tried at a New York City federal court.
Panel Republicans blasted Holder’s judgment at the hearing last week and have spoken out against the decision in the media.
Read our latest report of Republican opposition to the decision here.
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Supreme Court justices seemed to struggle on Wednesday with the question of when, if ever, prosecutors should be held personally liable for their officials acts, reports The National Law Journal’s Tony Mauro.
Curtis McGhee and Terry Harrington, who served 25 years in prison, sued prosecutors for violating their civil rights by allegedly coercing and coaching witnesses to falsely accuse them of killing a retired Iowa policeman. The suit, Pottawattamie County v. McGhee and Harrington, targets County Attorney David Richter and an Assistant County Attorney Joseph Hrvol.
Police who manipulate evidence have qualified immunity, but prosecutors have absolute immunity. The issue before the court is whether prosecutors performing police-like duties before trial, and then either participate or do not participate at trial, enjoy protection from liability.
Several justices appeared disturbed by the facts of the case and unwilling to let prosecutors completely off the hook. But the long tradition of strong prosecutorial immunity also seemed to tug at the Court.
“We’re worried about the chilling effect on the prosecutors,” said Chief Justice John Roberts Jr. at one point.
The former Iowa inmates were represented by former Solicitor General Paul Clement, who made 49 appearances before the court as the government’s chief advocate during the Bush administration. Clement, now at King & Spalding, took the case pro bono, according to Mauro.
Clement said even prosecutorial immunity has its limits.
“The police officer that engages in this misconduct has committed a grave, grave constitutional violation and ought to be liable,” Clement told the Court. “I think the prosecutor who engages in the pretrial misconduct and then doesn’t participate in the trial is just as liable as that police officer, and I can’t think of a single reason why the only reason a prosecutor would get absolute immunity is if they not only participated in the pretrial misconduct but completed the scheme by committing further misconduct at trial.”
But where to draw the line? Lawyers arguing for the county — Deputy U.S. Solicitor General Neal Katyal and Stephen Sanders, an associate at Mayer Brown - said any erosion of immunity would be seized on by every disgruntled defendant and hinder prosecutors in the performance of their official duties.
“If prosecutors have to worry at trial that every act they undertake will somehow open the door to liability, then they will flinch in the performance of their duties and not introduce that evidence,” Katyal said.
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So, former “enemy combatant” Ali Saleh Kahlah Al-Marri did indeed turn out to be an al-Qaeda operative. And a very dangerous one at that. Trained in al-Qaeda camps and schooled in chemical warfare, the dual Qatar-Saudi Arabian citizen admitted in a plea deal Thursday the government could prove he’d been sent to the U.S. by 9/11 mastermind Khalid Sheikh Mohammed to be part of a sleeper cell to launch further attacks.
But when President Bush designated al-Marri an “enemy combatant” in 2003, throwing him into a Navy brig in South Carolina for five years in violation of his habeas rights, some people began to think he really was just a student and not, as the government alleged, hard-core al-Qaeda.
Al-Marri defense attorney Andrew Savage told the New Yorker’s Jane Mayer for a story published in February:
“I don’t fear him, not personally and not for the United States,” Savage said. “Is he putting me on? Scamming me? Putting it over on me? I really don’t think so. I’m not naïve. I’ve defended multi-murderers, child murderers, child molesters, and all sorts of violent criminals. But I really don’t think Ali’s a terrorist.”
Not naïve? Give me a break!
Mayer’s piece is one of the few that thoughtfully explores the dilemma facing the Obama administration, which is under fire from the Left for defending the Bush positions on state secrets and other security matters. To wit: This stuff ain’t easy, folks.
Originally charged with credit card and identity fraud, al-Marri’s case presented a problem for the Bush administration. Inside the government, where officials had access to all the intelligence and investigatory material, it was clear al-Marri was a terrible danger. But what if a jury found otherwise? They do it all the time, even in the face of overwhelming evidence of guilt – just look at the Sami Al-Arian case that we’ve written about previously at Main Justice. If al-Marri hadn’t been convicted, he would have been deported, yes. But then he might have gone right back into circulation, working with al-Qaeda to plan more attacks on the United States.
But Bush’s solution – lock him up and throw away the key – is antithetical to everything the Founders envisioned when they wrote our Constitution.
Georgetown law professor Neal Katyal, who won the 2006 Hamdan case before the Supreme Court striking down Guantanamo military tribunals, and who is now the principal deputy solicitor general, has proposed a national security court to take on these difficult cases. This court would be staffed by lawyers with high-level clearances and judges who specialize in the national security. In this manner, some form of preventive detention consistent with the constitution could be achieved, he’s written.
Attorney General Eric Holder in a statement about the al-Marri plea recognized the balancing act. “Without a doubt, this case is a grim reminder of the seriousness of the threat we, as a nation, still face. But it also reflects what we can achieve when we have faith in our criminal justice system and are unwavering in our commitment to the values upon which this nation was founded and the rule of law.”
Still, the maximum sentence al-Marri faces is 15 years. That seems a bit lenient. There are Americans sitting in jail today for the rest of their lives for much lesser offenses. Al-Marri’s already been locked up for nearly eight years. Here’s hoping he doesn’t get credit for any time served.
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The Department of Justice will support the Bush administration’s position in District Attorney’s Office for the Third Judicial District v. Osborne, turning down a request from the Innocence Project to reverse the previous administration’s position, reports BLT: The Blog of Legal Times. The case involves prisoners’ access to DNA evidence in postconviction proceedings in the state of Alaska. Alaska’s view is that prisoners do not have the constitutional right to obtain DNA evidence to help them prove their innocence, even if the prisoners pay all of the expenses.
President Obama’s decision in this matter has caught some by surprise, given the success of DNA evidence in exonerating prisoners, as well as the president’s support for access to DNA evidence when he was a state senator in Illinois.
The specifics: In 1993, William Osbourne was convicted of sexual assault and kidnapping in the death of a prostitute. During the trial, Osbourne’s lawyer did not request a DNA test of semen in a condom found at the scene of the crime. When Osbourne appealed his conviction, Alaska courts said he was not entitled to DNA evidence for testing. That ruling was reversed by the U.S. Court of Appeals for the Ninth Circuit, and now Alaska has brought the case before the Supreme Court.
Deputy solicitor general Neal Katyal will be representing the government, while Peter Neufeld, co-founder of the Innocence Project, will represent Osbourne.
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