U.S. Justice Department Lawyers Mutiny and Refuse Detainee Cases

Some lawyers in the civil appeals division object to the government’s policies on Guantánamo Bay


By Emma Schwartz    U.S. News and World Report August 30, 2007


The government’s legal arguments justifying the detention of hundreds of people at the Guantánamo Bay naval base have been repudiated three times by the U.S. Supreme Court. But it’s not just outsiders who take issue with the U.S. Justice Department strategy: Up to one fourth of the department’s own civil appellate staff has recently opted out of handling the government’s cases against detainee appeals, two sources familiar with the matter tell U.S. News.


These conscientious objectors—their exact number is not known—have decided not to take part in the government’s litigation against the detainees because of disagreements with the legal approach, these sources say. They would not elaborate on the specific reasons for the objections, but critics have long objected to the government’s failure to formally charge detainees and have pushed for closing Guantánamo because of allegations of torture and inhumane conditions. Defense lawyers also contend that the government has stymied their cases by withholding documents and curbing client access.

The quiet rebellion has emerged in recent months among the approximately 56 attorneys in the appellate section of the Justice Department’s civil division following a court ruling in February that placed the defense of the approximately 130 remaining Guantánamo cases under the responsibility of the appellate lawyers. More than 300 men captured shortly after the U.S. invasion of Afghanistan in 2001 are still being held at Guantánamo over alleged ties to terrorists, although all but a handful have never been formally charged with crimes.


Though the objectors have created some tension among the appellate staff, it’s unclear that their opposition has hampered the government’s efforts—especially because the court ruling will be reviewed by the Supreme Court this term. But the staff attorneys’ objections highlight how dissension has grown even within the department’s own ranks.

Justice Department spokesperson Charles Miller declined comment.


The Justice Department has no formal policy allowing attorneys to opt out of certain cases, unlike some law firms that make clear they won’t penalize associates who, for instance, choose not to defend tobacco companies. But, informally, attorneys have rejected certain types of cases.


Most famously, in 1982, then Deputy Solicitor General Lawrence Wallace signed off on a brief in Bob Jones University v. United States but in a footnote noted his opposition to the department’s position. The argument went against an Internal Revenue Service policy that denied tax-exempt status to institutions that discriminated by race.

The government’s treatment of the Guantánamo detainees has a troubled legal history. The Justice Department initially denied the detainees any legal rights, arguing that the federal courts had no jurisdiction over foreigners captured overseas and held on the base in Cuba. But in 2004, the Supreme Court ruled that the federal courts had the obligation to hear petitions challenging the detainees’ detention because Guantánamo Bay is controlled by the U.S. military.


In an effort to block a flood of litigation, Congress passed the Detainee Treatment Act in December 2005, barring cases challenging detainees’ detention—habeas corpus petitions—from the federal courts. But in 2006, the Supreme Court ruled that the law did not apply to cases that had already been filed. That left a slew of petitions in the federal courts. The ruling also threw out the White House’s newly created military commission system because it did not comply with the Geneva Conventions.


Congress tried to stanch the litigation once again in October 2006 with the Military Commissions Act, which banned all habeas petitions by Guantánamo detainees. But it allowed them to file more narrow challenges of their status as enemy combatants—only in the more conservative U.S. Court of Appeals for the D.C. Circuit. The detainees tried to challenge the law, but in February a divided three-judge panel on the D.C. Circuit ruled against them, effectively moving all detainee litigation into the D.C. Circuit and into the hands of the civil appellate lawyers.


Although the Supreme Court is planning to address the ruling this year, the Justice Department has recently been on the defense in the D.C. Circuit. A different unanimous three-judge panel held in July that the government must turn over more information for the court’s review of the detainees’ new challenges, a ruling that the Justice Department has continued to contest.


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