Gitmo lawyers; Conflicts of interest at the Justice Department

Our Department of Justice is looking more and more like the Guantanamo Bay Bar Association each day.

The editors at the Washington Times wrote this morning:

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 [sic – about 100 of the remaining 229 detainees are from Yemen]. 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. … READ THE REST.

Here is then Covington lawyer David Remes advocating on behalf of Yemeni detainees (click on image to read the story).

Covington & Burling lawyer David Remes

Click on the image below to see former Covington lawyer Falkoff special pleading for al-Ajmi back in 2005 at a “teach in,” at Seton Hall University. (The video is a little less than 7 minutes long and the full poem he reads is by al-Ajmi.)

Mark Falkoff video

Here is al-Ajmi blowing himself and 13 of his fellow Muslims up, in Iraq two years later, using a 10,000 lb truck bomb:


Debra Burlingame wrote about al-Ajmi here.


Assistant Attorney General for the Civil Division Tony West represented “American Taliban” John Walker Lindh.

Deputy Attorney General David W. Ogden’s former lawfirm, Wilmer Cutler Pickering Hale and Dorr LLP, was involved in detainee litigation and argued on behalf of detainees in Boumediene v Bush before the Supreme Court. Incidentally, former DAG Jamie Gorelick of ‘the Wall’ fame is currently a partner there.

Former Guantanamo detainee Abdullah Saleh Al-Ajmi

Debra Burlingame is currently on NPR radio discussing former Guantanamo detainee Abdullah Saleh Al-Ajmi.

Click here to view more about him.

In case you missed this show, I will post the audio late this evening so please stop back.

Update 3:22 PM, Eastern:

The link to the NPR article and audio (download available at 6 PM) is here.

In addition, Debra Burlingame provided me a copy of her letter to the Editor of the Washington Post that she sent and has yet to be published:

While the proximity of fellow militants at Guantanamo Bay may have reaffirmed Abdullah al-Ajmi’s dedication to his religious fanaticism, the record and his own words reflect that he arrived at the detention center a hardened Islamist. Indeed, he risked imprisonment in his own country by deserting the Kuwaiti army to go to Afghanistan in anticipation of U.S. military action after the 9/11 attacks.

Tom Wilner, al-Ajmi’s lead Shearman & Sterling attorney, professes not to understand why the U.S. chose to release his client in 2005. Mr. Wilner’s 1.5 million dollars in fees, paid by the government of Kuwait–an important oil industry client of Shearman & Sterling–covered not only Mr. Wilner’s work in the courtroom but also his lobbying efforts on behalf of al-Ajmi in the halls of Congress and at the State Department. It is an outrage for Mr. Wilner to now claim that our military forces at JTF-GTMO, whose average age is 22, are to blame for his client’s radicalism. The chief contributing factor in the deaths of the 13 people al-Ajmi killed and the 42 others he maimed in a suicide attack three years after his release was Mr. Wilner’s own relentless efforts to politicize Guantanamo and set al-Ajmi free.