Seven Ways Donald Verrilli Shaped Obama-era National Security Legal Policy

Don Verrilli is stepping down after five years as the Solicitor General. News accounts of his departure, like this one by my colleague Eric Lichtblau, are understandably focusing on the big domestic law cases he argued before the Supreme Court – particularly the ones on Obamacare and same-sex marriage rights. But Verrilli’s impact on governance went far beyond those issues and into the realm of national security legal policy, as readers of Power Wars know. Here are seven important contributions:

1. State Secrets Privilege

Verrilli joined the Obama administration in 2009 as the top associate in the Office of the Deputy Attorney General (ODAG) dealing with national security issues. In that role, his first task was to lead the new administration’s review of state secrets policy. He oversaw a review of all the pending court cases in which the Bush administration had asserted state secrets and, counter to the expectations of the new administration that they had been abused to cover up wrongdoing, recommended to Attorney General Eric Holder that the Obama administration should keep all of them as justified. He also wrote a new policy for future invocations of the privilege, which echoed the process for when prosecutors seek the death penalty – including requiring written sign-off by the attorney general. (420-424)

2. Bush-era Torture Memos 

That spring, Verrilli was also a key player in a push by new political appointees at the Justice Department to release Bush administration-era torture memos in response to an ACLU Freedom of Information Act lawsuit, rather than fighting the case. He wrote a memo that went to the White House arguing for why the memos should be made public. (426-430)

3. Miranda Warnings and Presentment Hearings for Terrorism Suspects

In 2010, Verrilli went to the White House under the new White House Counsel, Bob Bauer, initially as an associate dealing with national security issues. In that role, Bauer tasked him with leading the process, after the attempted bombing of a Detroit-bound airliner on Christmas 2009 made the FBI’s reading of Miranda rights to terrorism suspects controversial, of developing a proposal to delay reading Miranda warnings and giving presentment hearings to such suspects. The Obama administration eventually abandoned that proposal and a lot of its members felt ashamed that they had flirted with it. (305-308)

4. War Crimes and Military Commissions

In late 2012 a federal appeals court ruled that two major crimes being prosecuted in Guantanamo military commissions, providing material support for terrorism and conspiracy, were not international “war crimes” and so could not be brought in a tribunal – only a civilian court. The chief prosecutor in the tribunals system, General Mark Martins, and Harold Koh, the top State Department lawyer, wanted to accept that ruling and downsize the tribunals system, but others wanted to appeal. Under normal circumstances, it is up to the solicitor general to decide what appeals to file. Verrilli, now the solicitor general, sided with Martins and Koh, but took the issue to Holder, who overruled them. (495-501)

5. Warrantless Surveillance and Evidence Derived From It

Back in 2012, Verrilli had argued before the Supreme Court against the ACLU in a case challenging the constitutionality of the FISA Amendments Act, which legalized the Bush administration’s warrantless surveillance program. He told the court that the ACLU’s clients did not have standing to sue because they could not prove they had been wiretapped under that program, but assured the justices that this did not mean the statute would never be reviewed because the Justice Department had an obligation to tell criminal defendants if they faced evidence derived from such surveillance, and such defendants would have standing to challenge it. He won that case 5-4. But in June 2013, after the leaks by Edward Snowden cast a spotlight on surveillance matters, it became clear that the national security prosecutors did not think they had a duty to tell defendants when they faced evidence derived from such surveillance. Verrilli, initially confused as to why the National Security Division had permitted him (in vetting his brief and mooting his arguments) to say otherwise to the Supreme Court, eventually became convinced that the Justice Department policy was illegal. In July 2013, he pushed through a policy change over the objections of the National Security Division and the future attorney general Loretta Lynch, and the department for the first time began making some such notifications, setting up opportunities for judicial review of the statute. (555, 558-560, 586-593)

6. Office of Legal Counsel Memos on Killing Anwar al-Awlaki

In 2014, after a federal appeals court ruled that the Obama administration had to make public its secret legal memos about the targeted killing of Anwar al-Awlaki, an American citizen, in response to FOIA cases brought by the New York Times and by the ACLU, the CIA wanted to appeal to the Supreme Court. As solicitor general, it was up to Verrilli to make that call – and he decided not to appeal but instead to comply with the ruling and put the memos out. (465-467)

7. Judicial Review of Conditions of Confinement at Guantanamo

Also in 2014, a federal appeals court ruled that judges had jurisdiction to oversee conditions of confinement – like the practice of force-feeding hunger-striking detainees – at Guantanamo. The top Pentagon lawyer wanted to appeal that ruling, but Verrilli let it stand. (515-516) However, Verrilli later did decide to appeal a ruling that videotapes of forcefeeding be made public (748 n 79).