The Justice Department under President Barack Obama has quietly dropped its legal representation of more than a dozen Bush-era Pentagon and administration officials – including former Defense Secretary Donald Rumsfeld and aide Paul Wolfowitz – in a lawsuit by Al Qaeda operative Jose Padilla, who spent years behind bars without charges in conditions his lawyers compare to torture.
Charles Miller, a Justice Department spokesman, confirmed Tuesday that the government has agreed to retain private lawyers for the officials, at a cost of up to $200 per hour. Miller said “conflicts concerns” prompted the decision. He did not elaborate.
One private attorney involved in the case, who asked not to be named, said the Obama administration apparently concluded “its duty to represent the defendants zealously, which includes the duty to argue any and all defenses, can’t be discharged for reasons of policy and other government interests.”
The Justice Department continues to represent only a single official, Defense Secretary Robert Gates, in the suit.
Last week a federal judge in Charleston, S.C. dismissed Padilla’s suit against Gates, Rumsfeld, Wolfowitz, and several military officers who oversaw Padilla’s confinement at the nearby Navy brig. Judge Richard Gergel said allowing the case to proceed could result in “a massive discovery assault on the intelligence agencies of the United States Government….and lengthy and probing depositions of high-ranking government officials with national security clearances and personal knowledge of some of the Nation’s most sensitive information.”
However, a federal judge in San Francisco, weighing a separate but parallel suit against former Justice Department lawyer John Yoo ruled that case could go forward. Yoo authored memos that gave legal justifications for aggressive interrogations of terrorism detainees. (The government previously stepped back from representing Yoo.)
“The basic facts alleged in the complaint clearly violate the rights afforded to citizens held in the prison context,” Judge Jeffrey White wrote. “The fact that a unique type or designation of a detainee has come into being does not obliterate the clearly established minimum protections for those held in detention…. The complaint alleges conduct that would be unconstitutional if directed at any detainee.”
As a result of the conflict between the two rulings, lawyers involved in the Padilla lawsuits believe they are almost certainly destined for the Supreme Court.