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Project Open ClosetWhen do the legal skeletons come tumbling out of the Justice Department?

By Emily BazelonPosted Thursday, Jan. 22, 2009, at 7:01 PM ET

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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.