Even without a new attorney general confirmed, the Obama Justice Department churned up the legal landscape today with its executive orders on detention, interrogation, and Guantanamo. The new administration started looking forward, to the closing of the prison on the Cuban base and other prisons abroad and to limiting interrogators to techniques for questioning suspects approved in the Army Field Manual. It also began looking backward, with a promise to review all the cases of the Guantanamo detainees and the pending Supreme Court case of Ali Saleh Kahlah al-Marri, who is being held without charges in a military brig within the United States.
Quite a day. But the new folks are just getting started. As they take over the offices and the files of people whose legal positions they criticized for years as deeply misguided, the new lawyers in town have to figure out how much of their predecessors’ internal actions to expose. In some ways, setting the rules for the future is the easy part. Sorting out which detainees should be let go and which should be tried isn’t easy, but it’s a matter of making case-by-case determinations about what evidence to credit.
The trickiest cases for Obama’s DoJ may be the ones that involve going back to the past in another way. These are the cases concerning how detainees were treated and who is responsible for that treatment, and they could force Obama’s DoJ to confront directly which Bush secrets to disclose. When will we get to see the skeletons come tumbling out of the closet? And whose knock will the Obama administration respond to in opening the closet door?
Start with al-Marri. Obama ordered a review of his status as the only person being held without charges indefinitely within the United States. (Al-Marri is a Qatari citizen who was arrested while in the United States legally, then declared an enemy combatant in 2003 and sent to a military brig, where he remains.) In the case before the Supreme Court, he challenged the Bush administration’s authority to hold him. The Obama review presumably will, and should, lead the administration to renounce the Bush DoJ’s former position that al-Marri’s capture and detention, even though they took place on U.S. soil, are perfectly permissible under Congress’ 2001 Authorization for Use of Military Force. The new acting solicitor general has already asked for an additional month to file the government’s brief in that case, which pushes argument back to late April. Meanwhile, al-Marri has a separate case, still in district court, challenging the conditions of his confinement, with a motion pending about his prolonged isolation. (At the moment he gets two phone calls with his family a year, after five years with none.)
Another case that could lead to the disclosure of documents about who ordered alleged torture and mistreatment, and who carried it out, is Rasul v. Myers. Four former British detainees held at Guantanamo say that while at the prison, they were tortured (beaten, shackled, threatened with dogs) and suffered religious discrimination (beards forcibly shaved, denied the Quran, a copy of the Quran thrown into the toilet). Last year, the D.C. Circuit dismissed their claims, which were based on the Geneva Conventions, the U.S. Constitution, and a federal anti-discrimination law. The court also said that even assuming the suit was valid for the purpose of argument, the officials being sued (former Defense Secretary Donald Rumsfeld and a group of military officers) had qualified immunity, meaning that the suit against them could not proceed because Rumsfeld, et al., couldn’t have reasonably been expected to know that what they were doing was clearly illegal. Whether qualified immunity indeed applies is a big, looming question—and one the new Obama administration has yet to take a position on.
The Supreme Court has ordered the D.C. Circuit to go back to Rasul for a do-over, based on the justices’ ruling last June in Boumediene v. Bush, which suggested more rights for the detainees than the lower court allowed for. The government’s briefs in this new phase of the case were supposed to be due next week. The Obama DoJ just got an extension until March 12.
Then there are Jose Padilla’s lawsuits, also alleging mistreatment during his confinement and interrogation. One of these suits, brought in South Carolina, is against a group of high-ranking officials, including Rumsfeld. The other one, in California, is against John Yoo, the DoJ lawyer who helped draft the torture memos and, according to Padilla’s briefs, set interrogation policy as well. The South Carolina case has a hearing set for next week. The Obama DoJ hasn’t yet asked for more time.
Some of these cases were never about damages. (Padilla sued for $1. Al-Marri didn’t ask for damages.) They are about disclosure—getting to the bottom of what happened to these men in detention, asking for the documents that would lay out the underlying facts. The Bush administration stonewalled on all of this to the best of its ability. Its DoJ asserted broad privileges over the documents the detainees sought to prove their claims: attorney-client privilege, the state-secrets doctrine, another protection of government work product called the deliberative-process privilege.
Now that the Obama lawyers are in charge, does all of this change? Does the Justice Department continue to represent officials like Rumsfeld and Yoo, with whom it presumably has little sympathy? Does the Obama DoJ settle these suits, with the disclosure of documents as part of the settlement agreement? Or does the new DoJ pre-emptively declassify and release many of the key documents on its own, or at the behest of Congress, which has been impatiently holding on to a series of related subpoenas? Does it waive the broad privileges the Bush administration asserted—in particular cases or as a general matter?
The lawyers who have just arrived at the DoJ are still unpacking their boxes, so it makes sense that they’re not ready to answer all of these questions. They include former Slate contributors who were some of the smartest and fiercest critics of the old regime. Now they’re in the position of writing the closing chapter of Bush’s legal legacy, by deciding what to tell the rest of us. They’re extremely well-chosen for carrying out Obama’s promise of transparency and the rule of law. Airing out the DoJ’s closets, with or without the prod of lawsuits, is the place to start.