Justice has dropped its representation of Donald Rumsfeld in a suit by an Al Qaeda operative, DoJ drops defense of Bush officials

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.

Legal ethics experts said the Justice Department’s withdrawal could stem from qualms about a full-throated defense of Padilla’s treatment while in military custody. His lawyers claim that Padilla’s captors in the brig subjected him to abuse including sensory deprivation, prolonged isolation, imminent death threats, forced drugging and interference with his practice of Islam.

“Some of the [defendants] may have wanted to make more extreme arguments about the legality of their conduct than the Justice Department was willing to accept,” said Stephen Gillers, a professor of law at New York University.

Another potential complication: Attorney General Eric Holder signed three Supreme Court amicus briefs objecting to the Bush administration’s treatment of Padilla.

Ben Wizner of the American Civil Liberties Union, one of Padilla’s lawyers, welcomed the Justice Department’s decision.

“If that’s true, the administration deserves credit,” said Wizner, who counted 14 lawyers for the defense at a recent court session in South Carolina. “The notion that Donald Rumsfeld is above the law and Jose Padilla is beneath it is unworthy of the United States and dangerous to any democracy.”

Private lawyers for several of the defendants either declined to comment on the development or did not return messages seeking comment. Well-known GOP lawyers Lee Casey and David Rivkin are now representing Rumsfeld, while Wolfowitz retained former terrorism prosecutor Paul Butler.

The Brooklyn-born Padilla was arrested at Chicago’s O’Hare Airport in 2002 for allegedly plotting an attack involving a radioactive explosive, or “dirty bomb.” On orders from President George W. Bush, Padilla was quickly moved into military custody and spent more three years in the brig without charges.

In 2005, the U.S. Court of Appeals for the Fourth Circuit upheld Bush’s right to detain Padilla, but the Bush administration averted a Supreme Court battle by obtaining a terrorism-support indictment of Padilla in federal court in Florida. He was convicted in 2007 and sentenced to 17 years in prison.