Holder unleashed? Justice drops Rumsfeld, Wolfowitz, DOMA defense

Donald Rumsfeld, Paul Wolfowitz and other neocons from the George W. Bush administration can continue to fight accusations that they kidnapped and tortured American citizen Jose Padilla, but they’ll no longer have the Justice Department’s lawyers in their corner.

From Politico:

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.

The decision comes a week after a SC judge dismissed a lawsuit Padilla filed against Rummy, Wolfowitz and several military officers over his confinement, ruling that the discovery process could reveal state secrets. But a second case, one pulling in torture memo author John Yoo, is going forward, and likely to wind up before the Supreme Court. The Obama Justice Department had already stopped defending Yoo.

More from Politico:

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.”

Padilla, born in Brooklyn and raised in Chicago, where he became a gang member before moving to Florida, was arrested in 2002 at O’Hare Airport and initially accused of plotting a “dirty bomb” attack on the U.S. When the Bush administration couldn’t prove that, they held Padilla anyway for 3 years without charging him with anything, and only later did a Florida court approve a charge against him that resulted in a 17 year prison term. The charge was not, plotting a dirty bomb attack on the U.S. And Padilla has alleged he was tortured while in custody. — And not the deprivation of pillow kind of torture, either.

Also today, the Justice Department dropped its defense of a central plank of the Clinton-era Defense of Marriage Act, which prevents gay marriages from being recognized across state lines or by the federal government. The move is being applauded by gay rights groups, though the Obama administration says it will continue to enforce the law until it is struck down by a court. Combined, the decisions seem to mark the Rahm-free re-assertion of Eric Holder in Obamaworld.

A December 2010 GQ piece talked about the restrained nature of Eric Holder’s life, which it largely chalked up to the realpolitik of Rahm Emanuel, who is now the mayor-elect of Chicago. Could it be that without Rahmbo around, Holder is free to be more active?

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