Commentary Magazine


Topic: Deputy Attorney General

Fighting Corruption in Afghanistan

President Hamid Karzai’s firing of Afghanistan’s deputy attorney general, Fazel Ahmed Faqiryar, over his refusal to block investigations of high-level corruption is extremely troubling — but hardly surprising. I sympathize with those such as Congresswoman Nita Lowey who want to hold up aid to Afghanistan in protest against such blatant cover-ups. Such efforts may actually be useful, in that they provide American officials in Kabul with a stick they can use to threaten Karzai with in private.

But the reality is that there are few Third World countries where the judiciary and law-enforcement authorities are independent enough to allow investigations of corruption reaching into the president’s office. Even in the U.S., we have experience with high-level malfeasance going unpunished; recall LBJ’s notorious corruption or Clinton’s perjury. This should not cause us to throw up our hands in despair and declare that the mission in Afghanistan is hopeless. It’s not. Nor should we say that fighting corruption is impossible. It must be fought, and it’s possible to do — as long as we don’t limit our efforts to Afghan criminal justice, where Karzai and his cronies can all too easily frustrate investigations of their shenanigans.

There are other legal options available. Since much of the money in question comes from U.S. taxpayers to begin with, malefactors can be prosecuted in U.S. courts or they can have their funds frozen in foreign bank accounts, whether in the United Arab Emirates, Europe, or the U.S.  Moreover, with the growing U.S. troop presence in Afghanistan, our commanders on the ground have ways of squeezing corrupt officials that don’t require a court order. The sort of thing I have in mind is a staple of cops-and-robbers movies, where the police tell some notorious gangster that until he does what they want, they will harass him: raid his businesses, interrogate his employees, scare away his customers. Such pressure is perfectly legal and can be applied against all sorts of malign actors in Afghanistan — or at least threatened. Senior officials have substantial financial interests that are highly vulnerable to Western pressure, and those interests can be manipulated to put pressure on them to clean up their act. That won’t eliminate corruption altogether, but it could reduce it to less catastrophic levels.

President Hamid Karzai’s firing of Afghanistan’s deputy attorney general, Fazel Ahmed Faqiryar, over his refusal to block investigations of high-level corruption is extremely troubling — but hardly surprising. I sympathize with those such as Congresswoman Nita Lowey who want to hold up aid to Afghanistan in protest against such blatant cover-ups. Such efforts may actually be useful, in that they provide American officials in Kabul with a stick they can use to threaten Karzai with in private.

But the reality is that there are few Third World countries where the judiciary and law-enforcement authorities are independent enough to allow investigations of corruption reaching into the president’s office. Even in the U.S., we have experience with high-level malfeasance going unpunished; recall LBJ’s notorious corruption or Clinton’s perjury. This should not cause us to throw up our hands in despair and declare that the mission in Afghanistan is hopeless. It’s not. Nor should we say that fighting corruption is impossible. It must be fought, and it’s possible to do — as long as we don’t limit our efforts to Afghan criminal justice, where Karzai and his cronies can all too easily frustrate investigations of their shenanigans.

There are other legal options available. Since much of the money in question comes from U.S. taxpayers to begin with, malefactors can be prosecuted in U.S. courts or they can have their funds frozen in foreign bank accounts, whether in the United Arab Emirates, Europe, or the U.S.  Moreover, with the growing U.S. troop presence in Afghanistan, our commanders on the ground have ways of squeezing corrupt officials that don’t require a court order. The sort of thing I have in mind is a staple of cops-and-robbers movies, where the police tell some notorious gangster that until he does what they want, they will harass him: raid his businesses, interrogate his employees, scare away his customers. Such pressure is perfectly legal and can be applied against all sorts of malign actors in Afghanistan — or at least threatened. Senior officials have substantial financial interests that are highly vulnerable to Western pressure, and those interests can be manipulated to put pressure on them to clean up their act. That won’t eliminate corruption altogether, but it could reduce it to less catastrophic levels.

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Flotsam and Jetsam

The Obama economy isn’t getting better anytime soon: “The U.S. economic recovery will remain slow deep into next year, held back by shoppers reluctant to spend and employers hesitant to hire, according to an Associated Press survey of leading economists. The latest quarterly AP Economy Survey shows economists have turned gloomier in the past three months. They foresee weaker growth and higher unemployment than they did before.”

The Obama Justice Department isn’t shy about its preferences. “The politically charged gang led by Attorney General Eric H. Holder Jr. is more interested in helping felons vote than in helping the military to vote. Sen. John Cornyn, Texas Republican, has put a legislative hold on the already troubled nomination of James M. Cole to be deputy attorney general until the attorney general ensures full protection for voting rights of our military (and associated civilian personnel) stationed abroad.”

The Obama presidency isn’t what liberals imagined it would be (subscription required): “The Cook Political Report’s current outlook is for a 32 to 42 seat net gain for Republicans. Currently there are 255 Democratic and 178 Republican House members and two vacant seats, one formerly held by a Democrat and one by a Republican. Republicans need to net 39 seats to reach a bare majority of 218 seats. The Cook Political Report’s current outlook is for a 5 to 7 seat net gain for Republicans. Currently there are 57 Democrats, two independents that caucus with Democrats, and 41 Republican Senators. The Cook Political Report’s current outlook is for a 3 to 5 seat net gain for Republicans. Currently there are 26 Democratic and 24 Republican Governors.”

The Obama era isn’t “business as usual” inside the Beltway — it’s worse. “The House ethics committee announced 13 charges Thursday against Rep. Charles Rangel (D-N.Y.), who is accused of breaking House rules as well as federal statutes.”

The Obama administration isn’t about to take responsibility for anything. According to Obama, firing Shirley Sherrod was the media’s fault. The only thing surprising is that he didn’t find a way to blame George W. Bush for this.

The Obama “smart” diplomatic set isn’t going to take smart advice from Aaron David Miller: “One of the most enduring myths in the lore surrounding Arab-Israeli diplomacy is that direct negotiations provide the key to successful peacemaking. They don’t. The actual history of negotiations tells a far different story. Direct talks are often necessary, but have never been sufficient to ensure success. And Benjamin Netanyahu’s government, together with the Obama administration, should stop raising expectations and deluding themselves and the rest of us into thinking otherwise.”

The Obama UN team isn’t exactly wowing them. In fact, Susan Rice’s record is downright “embarrassing”: “Rice missed crucial negotiations on Iran’s continued enrichment of uranium, she failed to speak out when Iran was elected to the Commission on the Status of Women and three other UN Committees, she failed to call-out Libya when they were elected to the UN’s Human Rights Council, she recently delivered an Iran sanctions resolution with the least support Iran resolutions have ever had and she called her one and only press conference with the UN Secretary General on the issue of texting while driving. … Much of the blame for the weakness belongs to Rice and her habitual silence.  Rice has not conducted the hard negotiations nor done the sometimes unpopular work of engaging the UN on the United States’ priority issues.”

The Obama economy isn’t getting better anytime soon: “The U.S. economic recovery will remain slow deep into next year, held back by shoppers reluctant to spend and employers hesitant to hire, according to an Associated Press survey of leading economists. The latest quarterly AP Economy Survey shows economists have turned gloomier in the past three months. They foresee weaker growth and higher unemployment than they did before.”

The Obama Justice Department isn’t shy about its preferences. “The politically charged gang led by Attorney General Eric H. Holder Jr. is more interested in helping felons vote than in helping the military to vote. Sen. John Cornyn, Texas Republican, has put a legislative hold on the already troubled nomination of James M. Cole to be deputy attorney general until the attorney general ensures full protection for voting rights of our military (and associated civilian personnel) stationed abroad.”

The Obama presidency isn’t what liberals imagined it would be (subscription required): “The Cook Political Report’s current outlook is for a 32 to 42 seat net gain for Republicans. Currently there are 255 Democratic and 178 Republican House members and two vacant seats, one formerly held by a Democrat and one by a Republican. Republicans need to net 39 seats to reach a bare majority of 218 seats. The Cook Political Report’s current outlook is for a 5 to 7 seat net gain for Republicans. Currently there are 57 Democrats, two independents that caucus with Democrats, and 41 Republican Senators. The Cook Political Report’s current outlook is for a 3 to 5 seat net gain for Republicans. Currently there are 26 Democratic and 24 Republican Governors.”

The Obama era isn’t “business as usual” inside the Beltway — it’s worse. “The House ethics committee announced 13 charges Thursday against Rep. Charles Rangel (D-N.Y.), who is accused of breaking House rules as well as federal statutes.”

The Obama administration isn’t about to take responsibility for anything. According to Obama, firing Shirley Sherrod was the media’s fault. The only thing surprising is that he didn’t find a way to blame George W. Bush for this.

The Obama “smart” diplomatic set isn’t going to take smart advice from Aaron David Miller: “One of the most enduring myths in the lore surrounding Arab-Israeli diplomacy is that direct negotiations provide the key to successful peacemaking. They don’t. The actual history of negotiations tells a far different story. Direct talks are often necessary, but have never been sufficient to ensure success. And Benjamin Netanyahu’s government, together with the Obama administration, should stop raising expectations and deluding themselves and the rest of us into thinking otherwise.”

The Obama UN team isn’t exactly wowing them. In fact, Susan Rice’s record is downright “embarrassing”: “Rice missed crucial negotiations on Iran’s continued enrichment of uranium, she failed to speak out when Iran was elected to the Commission on the Status of Women and three other UN Committees, she failed to call-out Libya when they were elected to the UN’s Human Rights Council, she recently delivered an Iran sanctions resolution with the least support Iran resolutions have ever had and she called her one and only press conference with the UN Secretary General on the issue of texting while driving. … Much of the blame for the weakness belongs to Rice and her habitual silence.  Rice has not conducted the hard negotiations nor done the sometimes unpopular work of engaging the UN on the United States’ priority issues.”

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Holder on Meet the Press

Eric Holder appeared on Meet the Press. It seems that all that business about the Times Square bomber being a “one-off” incident was, well, wrong:

MR. HOLDER: Well, this is an ongoing investigation, there’s only so much that I can talk about, but I am comfortable in saying that they were involved in what Shahzad tried to do. And I think that’s an indication of the new threat that we face, these terrorist organizations, these affiliates of al-Qaeda or–these organizations are somehow connected to the kinds of things that al-Qaeda wants to do, indicates the worldwide concerns that we have to have if we’re going to be effective.

MR. GREGORY: Well, before I ask you about that changing face of terror, is it a danger when you have officials like Secretary of Homeland Security Janet Napolitano saying, at this very table last week, that this appeared to be a one-off attack, or the general of Central Command, David Petraeus saying that Shahzad appeared to be a lone wolf, and now you’re saying no, this was part of a, a Pakistani Taliban plot?

MR. HOLDER: Well, you know, the evidence develops, and I think we have to always try to be careful to make sure that the statements that we make is consistence with the evidence that we have developed. And it certainly looked, I think, at the beginning of this investigation, like it could have been a one-off. Over the course of this week, we’ve developed information, we’ve developed evidence that shows that the involved–shows the involvement of the Pakistani Taliban.

One wonders then why the administration is so quick to rush forth with pronouncements — and to make decisions about the legal status of the terrorist before it has sufficient information to make accurate comments and informed decisions.

Holder also revealed that Shahzad was, in fact, Mirandized, this time after eight hours of questioning. But we certainly didn’t know at the time that he was part of a Taliban plot. Yet we made what is likely an irreversible decision to Mirandize him and charge him in federal court. Nevertheless, after four domestic terror incidents, Holder declares a “new priority” for the administration — to explore greater flexibility in use of the Miranda rule. Good to know all the sneering at conservative critics who have been pounding this issue for months is now inoperative.

And what about KSM? Well, let it not be said that this crowd is giving up easily on a civilian trial. And here Holder is tied up in knots:

MR. GREGORY: So, if he’s acquitted, he would not be released. How is that consistent, Mr. Attorney General, with fairness and justice that you believe in of our system?

MR. HOLDER: Well, he certainly would be provided fairness and justice with regard to the trial that would occur. And with regard to the outcome of that trial, we have–if–and if he were acquitted, what I was trying to say that there are other mechanisms that we have that we might employ, immigration laws that we could use, the possibility of detaining him under the wars of law. There are a variety of things that we can do in order to protect the American people, and that is the thing that I keep uppermost in my mind.

MR. GREGORY: But, but if he’s acquitted and the United States says we will not let him free, then what is the point of having a trial?

MR. HOLDER: Well, there are other charges that are–that could be brought against him in addition to those he would stand accused of with regard to the 9/11 plot. There are a variety of other things that he could be tried for. And I think we can provide him with fairness and with justice in the systems that we now have in place.

MR. GREGORY: But you said, with regard to any KSM trial, failure is not an option, and yet you know full well you send prosecutors into court every day in this country knowing that there is plenty of uncertainty. Paul McNulty, the former deputy attorney general, said earlier this year with regard to the Moussaoui prosecution, he said, “The criminal justice process is not designed to guarantee any particular outcome. If that option (civilian court) is followed, we have to accept that it is unpredictable.” A trial of Khalid Sheikh Mohammed in civilian court is unpredictable, isn’t it?

MR. HOLDER: Well, I’m confident that if we try him in a civilian court, given the evidence that we have amassed, given the experience of the prosecutors who would try the case, given the skills that they have, that we will stand a very, very good chance of, of convicting him.

MR. GREGORY:  But that’s not what you said.  You said failure is not an option.  You said he will not be released.  And the broader criticism is, of you, that you say you believe in our civilian justice system.  And you said when you became attorney general that “I’m going to stick to those principles even when it’s hard.” And yet, with all the political pressure to be tough on terrorists, you said “I believe in the system” at the same time you appear to be rewriting the rules of that system, which, ultimately, critics say, can undermine the system.  Even with Shahzad, before he was charged, you held a press conference announcing that he had confessed.  Shouldn’t that be a concern to those who work with you and others who believe, as you say you do, in our civilian justice system?

MR. HOLDER:  Well, I believe in the civilian justice system. I have certainly worked all my life in the civilian justice system. I have confidence in the civilian justice system’s ability to handle these new threats that our, our, our country faces with regard to Shahzad, with regard to Khalid Sheikh Mohammed. I think that we have conducted ourselves in a way that’s consistent with the best that is about our, our, our civilian justice system. I’m not–I don’t think that I have to take back anything that I have said in the past. One of the things that we did with regard to that press conference was to get out there early to assure the American people generally and people in New York specifically that the person we thought was responsible for that attempted bombing was, in fact, in custody.

MR. GREGORY: Will KSM be tried in New York?

MR. HOLDER: We are still in the process of trying to decide where that trial will occur.

MR. GREGORY:  What is the holdup?  Everybody seems to be saying this is a foregone conclusion, it’s never going to New York. Why won’t you say that it won’t be there?

MR. HOLDER: Well, we’re taking a look at all of our options and trying to decide where the case can best be tried. There are federal statutes that we have to deal with that dictate where the case would have to occur if we’re going to seek the death penalty, as I’ve indicated that we will. There are a variety of things that have to be taken into consideration, both–in addition to what I’ve talked about, we also have to take into account what the political leadership in these various jurisdictions wants, what the, what the people in these various. …

MR. GREGORY: New York doesn’t want it. New York doesn’t have the resources for it. You just deployed all these FBI agents to catch Shahzad. What if they had to protect a trial of KSM?  I mean, it’s fairly clear that it doesn’t belong in New York, according to elected officials and other law enforcement officials, and yet there is this basically inaction on this issue of where the trial is. Is this being overly politicized by this administration and by you?

MR. HOLDER: No, it’s not being overly politicized. What we’re trying to do is come up with the best decision that we can. We’re taking our time, we’re considering all of our options. We want to make sure that we put this trial in the place where it can best be held.

They continued in this vein for a while, convincing no one but the most deluded that there was a coherent reason to try KSM in New York.

Holder suggests that this is an administration in transition. It is becoming increasingly untenable to defend a criminal-justice model for fighting Islamic terrorism, and yet the Obama team is reluctant to let go of it. Unfortunately for the leftist ideologues, reality keeps intervening.

Eric Holder appeared on Meet the Press. It seems that all that business about the Times Square bomber being a “one-off” incident was, well, wrong:

MR. HOLDER: Well, this is an ongoing investigation, there’s only so much that I can talk about, but I am comfortable in saying that they were involved in what Shahzad tried to do. And I think that’s an indication of the new threat that we face, these terrorist organizations, these affiliates of al-Qaeda or–these organizations are somehow connected to the kinds of things that al-Qaeda wants to do, indicates the worldwide concerns that we have to have if we’re going to be effective.

MR. GREGORY: Well, before I ask you about that changing face of terror, is it a danger when you have officials like Secretary of Homeland Security Janet Napolitano saying, at this very table last week, that this appeared to be a one-off attack, or the general of Central Command, David Petraeus saying that Shahzad appeared to be a lone wolf, and now you’re saying no, this was part of a, a Pakistani Taliban plot?

MR. HOLDER: Well, you know, the evidence develops, and I think we have to always try to be careful to make sure that the statements that we make is consistence with the evidence that we have developed. And it certainly looked, I think, at the beginning of this investigation, like it could have been a one-off. Over the course of this week, we’ve developed information, we’ve developed evidence that shows that the involved–shows the involvement of the Pakistani Taliban.

One wonders then why the administration is so quick to rush forth with pronouncements — and to make decisions about the legal status of the terrorist before it has sufficient information to make accurate comments and informed decisions.

Holder also revealed that Shahzad was, in fact, Mirandized, this time after eight hours of questioning. But we certainly didn’t know at the time that he was part of a Taliban plot. Yet we made what is likely an irreversible decision to Mirandize him and charge him in federal court. Nevertheless, after four domestic terror incidents, Holder declares a “new priority” for the administration — to explore greater flexibility in use of the Miranda rule. Good to know all the sneering at conservative critics who have been pounding this issue for months is now inoperative.

And what about KSM? Well, let it not be said that this crowd is giving up easily on a civilian trial. And here Holder is tied up in knots:

MR. GREGORY: So, if he’s acquitted, he would not be released. How is that consistent, Mr. Attorney General, with fairness and justice that you believe in of our system?

MR. HOLDER: Well, he certainly would be provided fairness and justice with regard to the trial that would occur. And with regard to the outcome of that trial, we have–if–and if he were acquitted, what I was trying to say that there are other mechanisms that we have that we might employ, immigration laws that we could use, the possibility of detaining him under the wars of law. There are a variety of things that we can do in order to protect the American people, and that is the thing that I keep uppermost in my mind.

MR. GREGORY: But, but if he’s acquitted and the United States says we will not let him free, then what is the point of having a trial?

MR. HOLDER: Well, there are other charges that are–that could be brought against him in addition to those he would stand accused of with regard to the 9/11 plot. There are a variety of other things that he could be tried for. And I think we can provide him with fairness and with justice in the systems that we now have in place.

MR. GREGORY: But you said, with regard to any KSM trial, failure is not an option, and yet you know full well you send prosecutors into court every day in this country knowing that there is plenty of uncertainty. Paul McNulty, the former deputy attorney general, said earlier this year with regard to the Moussaoui prosecution, he said, “The criminal justice process is not designed to guarantee any particular outcome. If that option (civilian court) is followed, we have to accept that it is unpredictable.” A trial of Khalid Sheikh Mohammed in civilian court is unpredictable, isn’t it?

MR. HOLDER: Well, I’m confident that if we try him in a civilian court, given the evidence that we have amassed, given the experience of the prosecutors who would try the case, given the skills that they have, that we will stand a very, very good chance of, of convicting him.

MR. GREGORY:  But that’s not what you said.  You said failure is not an option.  You said he will not be released.  And the broader criticism is, of you, that you say you believe in our civilian justice system.  And you said when you became attorney general that “I’m going to stick to those principles even when it’s hard.” And yet, with all the political pressure to be tough on terrorists, you said “I believe in the system” at the same time you appear to be rewriting the rules of that system, which, ultimately, critics say, can undermine the system.  Even with Shahzad, before he was charged, you held a press conference announcing that he had confessed.  Shouldn’t that be a concern to those who work with you and others who believe, as you say you do, in our civilian justice system?

MR. HOLDER:  Well, I believe in the civilian justice system. I have certainly worked all my life in the civilian justice system. I have confidence in the civilian justice system’s ability to handle these new threats that our, our, our country faces with regard to Shahzad, with regard to Khalid Sheikh Mohammed. I think that we have conducted ourselves in a way that’s consistent with the best that is about our, our, our civilian justice system. I’m not–I don’t think that I have to take back anything that I have said in the past. One of the things that we did with regard to that press conference was to get out there early to assure the American people generally and people in New York specifically that the person we thought was responsible for that attempted bombing was, in fact, in custody.

MR. GREGORY: Will KSM be tried in New York?

MR. HOLDER: We are still in the process of trying to decide where that trial will occur.

MR. GREGORY:  What is the holdup?  Everybody seems to be saying this is a foregone conclusion, it’s never going to New York. Why won’t you say that it won’t be there?

MR. HOLDER: Well, we’re taking a look at all of our options and trying to decide where the case can best be tried. There are federal statutes that we have to deal with that dictate where the case would have to occur if we’re going to seek the death penalty, as I’ve indicated that we will. There are a variety of things that have to be taken into consideration, both–in addition to what I’ve talked about, we also have to take into account what the political leadership in these various jurisdictions wants, what the, what the people in these various. …

MR. GREGORY: New York doesn’t want it. New York doesn’t have the resources for it. You just deployed all these FBI agents to catch Shahzad. What if they had to protect a trial of KSM?  I mean, it’s fairly clear that it doesn’t belong in New York, according to elected officials and other law enforcement officials, and yet there is this basically inaction on this issue of where the trial is. Is this being overly politicized by this administration and by you?

MR. HOLDER: No, it’s not being overly politicized. What we’re trying to do is come up with the best decision that we can. We’re taking our time, we’re considering all of our options. We want to make sure that we put this trial in the place where it can best be held.

They continued in this vein for a while, convincing no one but the most deluded that there was a coherent reason to try KSM in New York.

Holder suggests that this is an administration in transition. It is becoming increasingly untenable to defend a criminal-justice model for fighting Islamic terrorism, and yet the Obama team is reluctant to let go of it. Unfortunately for the leftist ideologues, reality keeps intervening.

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Yoo and Bybee Cleared, Justice Department’s Shoddy Investigation Exposed

The Justice Department has finally closed a sorry chapter in its history — the attempt to criminalize the work of Department lawyers who rendered legal judgment on the use of enhanced interrogation techniques in the wake of the worst terrorist attack in American history. The Office of Professional Responsibility, as the Washington Post report notes, had doggedly pursued John Yoo and Jay Bybee, who as Justice Department lawyers authored memos providing advice and direction on enhanced interrrogation methods including waterboarding. In a Friday information dump (which tells you it does not aid the cause of the administration and those seeking Yoo’s and Bybee’s punishment), we got a glimpse at two drafts of OPR’s report, its final report, and then the recommendation of David Margolis, a career lawyer and Associate Deputy Attorney General.

Margolis’s report is 69 pages long. Margolis essentially shreds the work of OPR, finding no basis for a referral of professional misconduct for either lawyer. It is noteworthy that all throughout, Margolis adopts many of the criticisms of OPR’s work that outgoing Attorney General Michael Mukasey and his deputy Mark Filip rendered before leaving office at the end of the Bush administration.

At times the work of OPR itself seems to have violated the professional standards it was charged with enforcing. Sloppiness abounds. Margolis finds, for example, that OPR applied the wrong legal standard, the “preponderance of evidence” rather than the more stringent clear and convincing evidence” standard that state bar proceedings would utilize. (p. 11) Margolis also concludes that OPR’s findings “do not identify violation of a specific bar rule.” ( p. 12) Margolis further notes that OPR’s analysis and legal standard shifted from draft to draft. (pp.13, 15-16)

Margolis explains that OPR was counseled to consider “the conduct of Yoo and Bybee in light of circumstances that then existed. Interestingly, Margolis reveals that OPR was told to consider that Yoo and Bybee rendered advice when “American lives were particularly at risk at the time.” (p. 16) OPR didn’t do so. Bybee’s successor assistant attorney Jack Goldsmith, who withdrew one of the memos at issue and was subsequently critical of Bush era interrogation polices, made an unsolicited submission urging that OPR should be “exercis[ing] great caution when assessing the professional responsibility of executive branch attorneys who act in time of national security crisis. Any standard that would have landed Robert Jackson [famed Nuremberg prosecutor and Supreme Court Justice] in trouble cannot be the right standard.” (pp. 19-20)

Margolis then goes methodically through the various legal work of Yoo and Bybee that OPR had found as the basis for professional misconduct. (pp. 21-64). At times Margolis found that OPR simply substituted its own judgment for that of Yoo and Bybee. (p.40) On other points Margolis found the analysis of Yoo and Bybee “debatable” (p. 64) and on some points he found the analysis flawed. But in no instance did he find they had violated their professional obligations. As to Bybee: “I conclude the preponderance of evidence does not support a finding that he knowlingly or recklessly provided incorrect advice or that he exercised bad faith.” (p. 64) OPR concluded that Yoo engaged in intentional misconduct. Again, Margolis concludes otherwise. (pp. 65-67). He notes that Yoo consulted in good faith with a criminal law expert in the Department, John Philbin. He criticizes what he calls Yoo’s “own extreme, albeit sincerely held, views of executive power,” but finds he did not “knowingly provide inaccurate legal advice to his client or that he acted with conscious indifference to the consequences of his action.” (p. 67)

The bottom line: Margolis finds the work of Yoo and Bybee “contained some significant flaws,” but that “the number and significance of them can now be debated.” (p. 68) What is clear is that there is no basis — and never was — for stripping these lawyers of their professional licenses, let alone criminally prosecuting them as many on the Left demanded. What is equally clear is that the work of OPR was shoddy, itself suspect, and ultimately rejected on many of the same grounds that Mukasey, Filip, Yoo, and Bybee raised — after years of inquiry and after certainly imposing much emotional and financial burden on Yoo and Bybee.

House Judiciary Chairman John Conyers is furious that Yoo and Bybee are not to be strung up. The real question, however, is why it took this long to clear the two lawyers and why OPR should have been permitted to flail around for years, putting at risk the professional reputations and savings of lawyers whose legal prowess fair exceeded theirs. It seems as though when counting up the “significant” flaws in legal work, OPR “wins” hands down. Read More

The Justice Department has finally closed a sorry chapter in its history — the attempt to criminalize the work of Department lawyers who rendered legal judgment on the use of enhanced interrogation techniques in the wake of the worst terrorist attack in American history. The Office of Professional Responsibility, as the Washington Post report notes, had doggedly pursued John Yoo and Jay Bybee, who as Justice Department lawyers authored memos providing advice and direction on enhanced interrrogation methods including waterboarding. In a Friday information dump (which tells you it does not aid the cause of the administration and those seeking Yoo’s and Bybee’s punishment), we got a glimpse at two drafts of OPR’s report, its final report, and then the recommendation of David Margolis, a career lawyer and Associate Deputy Attorney General.

Margolis’s report is 69 pages long. Margolis essentially shreds the work of OPR, finding no basis for a referral of professional misconduct for either lawyer. It is noteworthy that all throughout, Margolis adopts many of the criticisms of OPR’s work that outgoing Attorney General Michael Mukasey and his deputy Mark Filip rendered before leaving office at the end of the Bush administration.

At times the work of OPR itself seems to have violated the professional standards it was charged with enforcing. Sloppiness abounds. Margolis finds, for example, that OPR applied the wrong legal standard, the “preponderance of evidence” rather than the more stringent clear and convincing evidence” standard that state bar proceedings would utilize. (p. 11) Margolis also concludes that OPR’s findings “do not identify violation of a specific bar rule.” ( p. 12) Margolis further notes that OPR’s analysis and legal standard shifted from draft to draft. (pp.13, 15-16)

Margolis explains that OPR was counseled to consider “the conduct of Yoo and Bybee in light of circumstances that then existed. Interestingly, Margolis reveals that OPR was told to consider that Yoo and Bybee rendered advice when “American lives were particularly at risk at the time.” (p. 16) OPR didn’t do so. Bybee’s successor assistant attorney Jack Goldsmith, who withdrew one of the memos at issue and was subsequently critical of Bush era interrogation polices, made an unsolicited submission urging that OPR should be “exercis[ing] great caution when assessing the professional responsibility of executive branch attorneys who act in time of national security crisis. Any standard that would have landed Robert Jackson [famed Nuremberg prosecutor and Supreme Court Justice] in trouble cannot be the right standard.” (pp. 19-20)

Margolis then goes methodically through the various legal work of Yoo and Bybee that OPR had found as the basis for professional misconduct. (pp. 21-64). At times Margolis found that OPR simply substituted its own judgment for that of Yoo and Bybee. (p.40) On other points Margolis found the analysis of Yoo and Bybee “debatable” (p. 64) and on some points he found the analysis flawed. But in no instance did he find they had violated their professional obligations. As to Bybee: “I conclude the preponderance of evidence does not support a finding that he knowlingly or recklessly provided incorrect advice or that he exercised bad faith.” (p. 64) OPR concluded that Yoo engaged in intentional misconduct. Again, Margolis concludes otherwise. (pp. 65-67). He notes that Yoo consulted in good faith with a criminal law expert in the Department, John Philbin. He criticizes what he calls Yoo’s “own extreme, albeit sincerely held, views of executive power,” but finds he did not “knowingly provide inaccurate legal advice to his client or that he acted with conscious indifference to the consequences of his action.” (p. 67)

The bottom line: Margolis finds the work of Yoo and Bybee “contained some significant flaws,” but that “the number and significance of them can now be debated.” (p. 68) What is clear is that there is no basis — and never was — for stripping these lawyers of their professional licenses, let alone criminally prosecuting them as many on the Left demanded. What is equally clear is that the work of OPR was shoddy, itself suspect, and ultimately rejected on many of the same grounds that Mukasey, Filip, Yoo, and Bybee raised — after years of inquiry and after certainly imposing much emotional and financial burden on Yoo and Bybee.

House Judiciary Chairman John Conyers is furious that Yoo and Bybee are not to be strung up. The real question, however, is why it took this long to clear the two lawyers and why OPR should have been permitted to flail around for years, putting at risk the professional reputations and savings of lawyers whose legal prowess fair exceeded theirs. It seems as though when counting up the “significant” flaws in legal work, OPR “wins” hands down.

UPDATE: Yoo’s attorney has released a statement. It concludes: “OPR’s work in this matter was shoddy and biased. The only thing that warrants an ethical investigation out of this entire sorry business is the number of malicious allegations against Professor Yoo and Judge Bybee that leaked out of the Department during the last year. It is high time for Attorney General Holder to show that these leaks were not authorized or encouraged — for base partisan purposes — at the highest levels of his department. Mr. Holder can do so by identifying the culprits and referring them for prosecution or bar discipline, as appropriate.”

UPDATE II: Bybee’s attorney has released a statement as well: “After an investigation spanning more than five years, the U.S. Department of Justice has concluded that Judge Jay S. Bybee acted in good faith and did not engage in ethical or professional misconduct during his service in the Department’s Office of Legal Counsel.” The Department has also determined that the matter does not warrant further proceedings or referral to the District of Columbia Bar. Maureen E. Mahoney, Judge Bybee’s attorney, stated that “The Department correctly rejected all claims of ethical or professional misconduct by Judge Bybee. While this vindication was many years in the making, we are pleased that the matter has now been resolved in his favor. No public servant should have to endure the type of relentless, misinformed attacks that have been directed at Judge Bybee. We can only hope that the Department’s decision will establish once and for all that dedicated public officials may have honest disagreements on difficult matters of legal judgment without violating ethical standards.”

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We May Learn Something, Finally

Deputy Attorney General David W. Ogden stepped down from the No. 2 spot at the Justice Department. The reason, we are told, is that he really didn’t get along with the attorney general, the career lawyers, or the political appointees. And the White House didn’t care for him. Well, sometimes things just don’t work out.

But that means we’ll have a confirmation hearing for the position responsible for a great many things in the Justice Department, including criminal matters and “federal programs” (Guantanamo). A high-profile confirmation hearing provides the Senate with the opportunity to get some answers out of a very tight-lipped Justice Department.

For starters, what’s become of the internal investigation by the Office of Professional Responsibility over the dismissal of the New Black Panthers voter-intimidation case? This week, Congressmen Frank Wolf and Lamar Smith penned a letter to Holder that read in part:

We remain concerned that the Justice Department is prolonging OPR’s investigation as a pretense to ignore inquiries from Congress and the U.S. Commission on Civil Rights into the sudden and unexplained dismissal of voter intimidation charges against the New Black Panther Party. Any written report by OPR will be prepared exclusively for the Attorney General and Deputy Attorney General, with no guarantee that it will ever be made public.

After five months of unanswered questions, the American people can tell a cover up when they see one. If the Justice Department had any credible reason for dropping these charges, what do they have to hide by providing those answers to Congress?

Perhaps if the confirmation of DOJ’s No. 2 is at issue, Holder will cough up some answers. And by the way, why was the case dismissed?

Then there’s the decision to give KSM a civilian trial. It seems that other than the lefty lawyer brigade at DOJ, Holder didn’t consult with anyone but his wife and brother, not even the New York City Police Department or the Department of Homeland Security. What process does Justice go through? Was the White House really never consulted? Which lawyers were involved, and what consideration was given to the release of national-security data? A key confirmation hearing is the time to get some information. I’m sure the most transparent administration in history will be willing to share all.

There has been precious little oversight of the Holder Justice Department by the Democratic Congress. Now senators will have their opportunity to ask some hard questions. It is, as they say, a teachable moment.

Deputy Attorney General David W. Ogden stepped down from the No. 2 spot at the Justice Department. The reason, we are told, is that he really didn’t get along with the attorney general, the career lawyers, or the political appointees. And the White House didn’t care for him. Well, sometimes things just don’t work out.

But that means we’ll have a confirmation hearing for the position responsible for a great many things in the Justice Department, including criminal matters and “federal programs” (Guantanamo). A high-profile confirmation hearing provides the Senate with the opportunity to get some answers out of a very tight-lipped Justice Department.

For starters, what’s become of the internal investigation by the Office of Professional Responsibility over the dismissal of the New Black Panthers voter-intimidation case? This week, Congressmen Frank Wolf and Lamar Smith penned a letter to Holder that read in part:

We remain concerned that the Justice Department is prolonging OPR’s investigation as a pretense to ignore inquiries from Congress and the U.S. Commission on Civil Rights into the sudden and unexplained dismissal of voter intimidation charges against the New Black Panther Party. Any written report by OPR will be prepared exclusively for the Attorney General and Deputy Attorney General, with no guarantee that it will ever be made public.

After five months of unanswered questions, the American people can tell a cover up when they see one. If the Justice Department had any credible reason for dropping these charges, what do they have to hide by providing those answers to Congress?

Perhaps if the confirmation of DOJ’s No. 2 is at issue, Holder will cough up some answers. And by the way, why was the case dismissed?

Then there’s the decision to give KSM a civilian trial. It seems that other than the lefty lawyer brigade at DOJ, Holder didn’t consult with anyone but his wife and brother, not even the New York City Police Department or the Department of Homeland Security. What process does Justice go through? Was the White House really never consulted? Which lawyers were involved, and what consideration was given to the release of national-security data? A key confirmation hearing is the time to get some information. I’m sure the most transparent administration in history will be willing to share all.

There has been precious little oversight of the Holder Justice Department by the Democratic Congress. Now senators will have their opportunity to ask some hard questions. It is, as they say, a teachable moment.

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Is Dana Priest a Common Criminal?

Dana Priest is a national-security correspondent for the Washington Post. Her professional success depends in large part on her ability to ferret out secrets from the U.S. intelligence and defense bureaucracy and from knowledgeable officials on Capitol Hill.

Sources within government, acting in violation of the laws governing secrecy, regularly provide her with classified information in exchange for her promise not to disclose their identity, even if this means she must defy a court order and possibly go to jail. Last year, Priest won a major journalism award for a November 2005 article bringing to light the highly classified fact that the CIA had established detention facilities for terrorists in foreign countries.

Because reporters have lately been going to jail with some frequency—the imprisonment of Judith Miller in the Valerie Plame leak investigation is the most famous recent instance, but there have been others—pressure has been building for federal “shield-law” legislation that would exempt reporters from being compelled by courts to disclose their sources.

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Dana Priest is a national-security correspondent for the Washington Post. Her professional success depends in large part on her ability to ferret out secrets from the U.S. intelligence and defense bureaucracy and from knowledgeable officials on Capitol Hill.

Sources within government, acting in violation of the laws governing secrecy, regularly provide her with classified information in exchange for her promise not to disclose their identity, even if this means she must defy a court order and possibly go to jail. Last year, Priest won a major journalism award for a November 2005 article bringing to light the highly classified fact that the CIA had established detention facilities for terrorists in foreign countries.

Because reporters have lately been going to jail with some frequency—the imprisonment of Judith Miller in the Valerie Plame leak investigation is the most famous recent instance, but there have been others—pressure has been building for federal “shield-law” legislation that would exempt reporters from being compelled by courts to disclose their sources.

The idea is that because journalists like Priest now lack such protection, sources hesitate to talk and the public is deprived of valuable news. With a Democratic majority now running the show in Congress, and a number of leading Republicans supporting such a bill, the prospects for the passage of a “reporter’s privilege” are better now than they have been at any time in recent memory.

Earlier this year, I put forward my own analysis of the reporter’s privilege in an article entitled Why Journalists Are Not Above the Law. In June 2006, I also testified about this and related issues before the Senate Judiciary Committee. Also testifying at the same hearing was Matthew W. Friedrich, the Principal Deputy Attorney General. The assembled Senators gave him a number of written questions about his department’s view of the shield-law bill then before Congress.

The Justice Department’s reply to these questions took a long time coming. Only now, a year later, has it been released to the public by the Senate Judiciary Committee. Among its many points, it takes a dramatic position regarding what is now routinely accepted journalistic behavior.

At issue is a loophole in the proposed bill. In cases in which journalists are themselves eyewitnesses to a crime, the shield would not apply. Thus, if Dana Priest found herself in a bank that was being robbed, she, like all other witnesses, would have an obligation to testify before a grand jury about what she heard and saw. She could not, under the proposed shield law, claim exemption, even if she subsequently wrote a news article about the holdup.

But this eyewitness exception itself has an exception in the proposed legislation. If the crime in question involved the unauthorized disclosure of classified government information to a journalist, than the eyewitness exception would not apply, and the journalist’s shield would remain in force.

To this, the Justice Department objects out such a provision “would permit [a] journalist to participate intentionally in violation of the criminal laws of the United States—indeed, as the recipient of the disclosure, to cause the crime to occur—with impunity.” This would put the journalist-source privilege on a completely different plane from other, long-recognized privileges, like the attorney-client privilege, which “does not apply where the attorney participates in crime.”

Surprisingly the position taken by the Justice Department has gone unnoticed by the media—which are not yet up in arms over it. True, the Justice Department has never once brought charges against a journalist for eliciting secrets from government officials (although, as in the ongoing AIPAC case, it has brought them against lobbyists for such conduct). In deference to the First Amendment guarantee of freedom of the press, the department’s strong and longstanding preference, codified in its own voluntarily adopted internal rules, has been to prosecute leakers rather than journalists.

But in this passage the Justice Department has taken a further step. It is stating unequivocally that when journalists like Dana Priest ferret out national-security secrets, even if they do not publish them, they are actively participating in a crime.

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