More than a dozen new Justice Department lawyers have come from private firms representing Guantanamo Bay detainees, creating potential conflicts of interest as the agency begins its review of roughly 245 men imprisoned at the military detention center.
The Justice Department has taken steps to avoid the appearance of impropriety. Ethics officials have advised lawyers -- including Attorney General Eric Holder Jr. -- to recuse themselves in matters involving detainees represented by their former firms.
"As a general rule, DOJ officials will not participate in reviews of specific detainees who their firms represented, consistent with ethics rules," Justice Department spokesman Dean Boyd said in an e-mailed statement.
Conflict-of-interest issues are common in new administrations as private attorneys move into government jobs, but Guantanamo poses a singular challenge: About 150 separate law firms, federal public defender offices, law school clinics, and nongovernmental organizations have been involved in detainee litigation. "It's a new illustration of an old issue," says Don Burnett, dean of the University of Idaho College of Law. "What's unusual is the size of the cluster of individuals who are affected.
Holder, for one, is disqualified from participating in matters involving 16 Yemeni detainees represented by his former firm, Covington & Burling. Holder never participated directly in the firm's Guantanamo work, and the American Bar Association's Rules for Professional Conduct wouldn't require a recusal in this case. (The ABA only requires government lawyers to recuse in matters in which they were "personally and substantially" involved while in private practice.) But the department's rules are stricter.
President Barack Obama has tasked Holder with leading the new administration's effort to close the detention facility within a year, and the department will play a key role in determining which detainees to try and how. Justice officials say Holder's Covington ties will have no effect on his involvement in policy issues, but he will have to sit out charging decisions and prosecutions should they arise in cases specifically involving Covington clients.
WORKING ON GUANTANAMO
The same goes for at least three members of his staff -- counselors James Garland and John Bies, and counsel Aaron Lewis -- who all left Covington for the DOJ's front office.
And the department will have to tread carefully as more lawyers join the leadership ranks. Several of Obama's nominees for top department posts have ties to Guantanamo through their firms' work, including:
• Wilmer Cutler Pickering Hale and Dorr's David Ogden, who is nominated for deputy attorney general. His firm represents three detainees in habeas proceedings in federal court.
Three former Wilmer lawyers are already planted in the DAG office: chief of staff Stuart Delery, senior counsel Eric Columbus, and counsel Chad Golder. Wilmer lawyers played the lead role in detainees' landmark victory in Boumediene v. Bush, which recognized their constitutional right to challenge their confinement under habeas corpus.
• Associate Attorney General nominee Thomas Perrelli, managing partner of Jenner & Block's Washington, D.C., office. His firm represents six detainees in habeas cases. Former Jenner associate Brian Hauck is serving as counsel in the office, and Associate Deputy Attorney General Donald Verrilli left the firm last month. Jenner was co-lead counsel to José Padilla in Rumsfeld v. Padilla and filed amicus briefs in Rasul v. Bush and Hamdi v. Rumsfeld.
• Covington & Burling's Lanny Breuer, the nominee to head the Criminal Division. He's also conflicted out of matters related to the firm's 16 Yemeni clients. Covington lawyers burned 3,022 hours on Guantánamo litigation in 2007, according to The American Lawyer's annual pro bono survey, the latest figures publicly available. It was the firm's largest pro bono project that year. Covington co-authored one of three petitioners' briefs filed in Boumediene v. Bush, and was responsible for several detainee victories in the U.S. Court of Appeals for the D.C. Circuit.
• Morrison & Foerster's Tony West, the nominee to head the Civil Division. His firm represents one detainee in a habeas case in U.S. district court.
Like Holder, none of these nominees participated in Guantanamo-related litigation, but at least one high-ranking appointee played a key role in advancing detainees' rights.
Principal Deputy Solictor General Neal Katyal successfully argued Hamdan v. Bush while a professor at the Georgetown University Law Center. In Hamdan, the Supreme Court found that the Bush administration's military commissions for trying suspected terrorists violated the Uniform Code of Military Justice and the Geneva Conventions. Justice officials say Katyal will still be able to work on detainee-related matters.
They also point out that lawyers can bypass ethics rules if they can show that their participation in a matter outweighs an appearance or actual conflict of interest. Legal ethics experts say the practice is common, and in Holder's case in particular, it could prove useful as he carries out his review.
Michael Scarcella contributed to this article.