Commentary Magazine


Topic: Jack Goldsmith

Just Hold Them

Benjamin Wittes of Brookings and Jack Goldsmith, a former assistant attorney general in the Bush administration (of which he was a sometimes critic), make a compelling case: forget civilian trials and military tribunals for enemy combatants. Their logic is sound:

Many critics of civilian trials claim that this problem would not have occurred in a military commission, but that is very probably wrong. The legal standard for excluding such evidence in military commissions would depend on the military judge’s sense of the “interests of justice.” The government would be foolish to rely on military judges’ willingness to admit evidence obtained – even in a derivative fashion — as a result of coercion. There is not much reason to think that the government would have had an easier time against Ghailani on this score if it had proceeded in a commission.

There is, however, reason to think that a commission trial would have presented problems not present in Ghailani’s civilian trial. One central problem is that the conspiracy charge on which Ghailani was nabbed might not be valid in military commissions; three sitting Supreme Court justices have said as much, and many scholars agree. On this and other issues from evidentiary and procedural rules to fundamental constitutional questions, military commissions raise legal uncertainties that have yet to be sorted out by appellate courts.

Instead, just hold the terrorists indefinitely. It’s tried and true and perfectly legal:

The government has a lesser burden in justifying military detention before a habeas corpus court than it has in convicting a terrorist of a crime at trial. The courts broadly accept that Congress has authorized military detention and that it is a perfectly legitimate form of terrorist incapacitation. … Military detention was designed precisely to prevent such fighters from returning to the battlefield. It is a tradition-sanctioned, congressionally authorized, court-blessed, resource-saving, security-preserving, easier-than-trial option for long-term terrorist incapacitation.

Oh the jaws that will drop in European salons! Oh the howls from the ACLU! But at this point, these are precisely the sorts of elites that the Obama administration should dismiss with a back of the hand. The American people and our enemies abroad look at the Obama detention operation with a mix of astonishment and contempt. The White House, however, created the fiction that only civilian trials are true to our “values” but now has figured out that they may be inimical to our national security. It has puffed and postured about closing Guantanamo but has now discovered its utility.

So what better time to wipe the slate clean, declare that Guantanamo will remain in operation for the “worst of the worst,” and relegate KSM and the rest to indefinite detention? That would redound to Obama’s political benefit and restore some oomph to a commander in chief badly in need of some; moreover, it would finally recognize the obvious: we’re at war, and combatants are not criminal defendants.

Benjamin Wittes of Brookings and Jack Goldsmith, a former assistant attorney general in the Bush administration (of which he was a sometimes critic), make a compelling case: forget civilian trials and military tribunals for enemy combatants. Their logic is sound:

Many critics of civilian trials claim that this problem would not have occurred in a military commission, but that is very probably wrong. The legal standard for excluding such evidence in military commissions would depend on the military judge’s sense of the “interests of justice.” The government would be foolish to rely on military judges’ willingness to admit evidence obtained – even in a derivative fashion — as a result of coercion. There is not much reason to think that the government would have had an easier time against Ghailani on this score if it had proceeded in a commission.

There is, however, reason to think that a commission trial would have presented problems not present in Ghailani’s civilian trial. One central problem is that the conspiracy charge on which Ghailani was nabbed might not be valid in military commissions; three sitting Supreme Court justices have said as much, and many scholars agree. On this and other issues from evidentiary and procedural rules to fundamental constitutional questions, military commissions raise legal uncertainties that have yet to be sorted out by appellate courts.

Instead, just hold the terrorists indefinitely. It’s tried and true and perfectly legal:

The government has a lesser burden in justifying military detention before a habeas corpus court than it has in convicting a terrorist of a crime at trial. The courts broadly accept that Congress has authorized military detention and that it is a perfectly legitimate form of terrorist incapacitation. … Military detention was designed precisely to prevent such fighters from returning to the battlefield. It is a tradition-sanctioned, congressionally authorized, court-blessed, resource-saving, security-preserving, easier-than-trial option for long-term terrorist incapacitation.

Oh the jaws that will drop in European salons! Oh the howls from the ACLU! But at this point, these are precisely the sorts of elites that the Obama administration should dismiss with a back of the hand. The American people and our enemies abroad look at the Obama detention operation with a mix of astonishment and contempt. The White House, however, created the fiction that only civilian trials are true to our “values” but now has figured out that they may be inimical to our national security. It has puffed and postured about closing Guantanamo but has now discovered its utility.

So what better time to wipe the slate clean, declare that Guantanamo will remain in operation for the “worst of the worst,” and relegate KSM and the rest to indefinite detention? That would redound to Obama’s political benefit and restore some oomph to a commander in chief badly in need of some; moreover, it would finally recognize the obvious: we’re at war, and combatants are not criminal defendants.

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Flotsam and Jetsam

Quicker than we imagined: “By 47 to 45 percent, Americans say Obama is a better president than George W. Bush. But that two point margin is down from a 23 point advantage one year ago. ‘Democrats may want to think twice about bringing up former President George W. Bush’s name while campaigning this year,” says CNN Polling Director Keating Holland.'”

Sooner than either imagined: “Embattled Democrats are increasingly turning to former President Bill Clinton to prop up their campaigns in the final weeks before November’s midterm elections. The former president is far and away the biggest draw for the party less than a month out, hitting races in states where Democrats would rather President Obama stay away.”

A White House departure didn’t come fast enough for some. Peter Feaver: “The only thing surprising about Jim Jones’s departure is he survived this long.” His buffoonery was his defining characteristic.

About time that someone started debunking the president’s accusations about “foreign money.” The Gray Lady: “[A] closer examination shows that there is little evidence that what the [Chamber of Commerce] does in collecting overseas dues is improper or even unusual, according to both liberal and conservative election-law lawyers and campaign finance documents. In fact, the controversy over the Chamber of Commerce financing may say more about the Washington spin cycle — where an Internet blog posting can be quickly picked up by like-minded groups and become political fodder for the president himself — than it does about the vagaries of campaign finance.” Actually, it says more about the president’s penchant for telling untruths.

Belatedly, we learn that Jewish-American leaders had serious concerns all along about Obama’s Middle East policy. How brave of them to go public only when Obama’s political standing is in decline.

Democrats finally run out of patience with Jerry Brown and demand that he apologize for a campaign associate who called Meg Whitman a “whore.” Yes, there goes the Golden State. Again.

Much too late, Obama gets around to publicly calling for the release of Chinese dissident and now Nobel Peace Prize winner Liu Xiaobo.

No rush — the Arab League stalls, hoping the Obami might up the bribes incentives for Bibi to extend the settlement moratorium. “Arab countries will give the US one month to find a compromise which can save peace talks between Israel and the Palestinians after negotiations stalled over the issue of Israeli building in West Bank settlements, AFP reported a diplomat at the Arab League meeting in Libya as saying on Friday. The unnamed diplomat said that a resolution to be approved later Friday by the Arab League Follow-up Committee on the peace process calls for the US administration to be given ‘a one month chance to seek the resumption of negotiations, including a halt to settlement [building].'”

Suddenly, David Broder discovers Rob Portman: “Now 54 and a fitness fanatic, Portman has achieved his status by being smart, disciplined and a team player. Business people know he does his homework, and Democrats find him approachable. Except for [Mitch] Daniels, there are few Republicans who have delved as deeply into fiscal and budgetary policy, trade and health care as has Portman, who notably expanded the Office of Management and Budget’s focus on Medicare and Medicaid, even when Bush showed little interest in the issue.”

An overnight sensation: Wisconsin GOP Senate candidate Ron Johnson. “In this year of political surprises, Mr. Johnson inhabits a niche all his own. He emerged from the tea party without being fully of it. … Mr. Johnson says he employs 120 people at a single plant that makes specialized plastics. ‘I’m not some big corporation. I run the type of business [that] is the backbone of our economy, the engine of job creation.’ America’s prosperity stems from its ‘freedoms, the free market,’ Mr. Johnson says. ‘I think people get that.'”

Eventually, we come full circle. Bush administration critic Jack Goldsmith argues we shouldn’t have military tribunals or civil trials. Just lock ‘em up. Sounds good to me.

It took long enough. Jeffrey Goldberg confirms that Matthew Yglesias is an ignoramus when it comes to Israel.

Quicker than we imagined: “By 47 to 45 percent, Americans say Obama is a better president than George W. Bush. But that two point margin is down from a 23 point advantage one year ago. ‘Democrats may want to think twice about bringing up former President George W. Bush’s name while campaigning this year,” says CNN Polling Director Keating Holland.'”

Sooner than either imagined: “Embattled Democrats are increasingly turning to former President Bill Clinton to prop up their campaigns in the final weeks before November’s midterm elections. The former president is far and away the biggest draw for the party less than a month out, hitting races in states where Democrats would rather President Obama stay away.”

A White House departure didn’t come fast enough for some. Peter Feaver: “The only thing surprising about Jim Jones’s departure is he survived this long.” His buffoonery was his defining characteristic.

About time that someone started debunking the president’s accusations about “foreign money.” The Gray Lady: “[A] closer examination shows that there is little evidence that what the [Chamber of Commerce] does in collecting overseas dues is improper or even unusual, according to both liberal and conservative election-law lawyers and campaign finance documents. In fact, the controversy over the Chamber of Commerce financing may say more about the Washington spin cycle — where an Internet blog posting can be quickly picked up by like-minded groups and become political fodder for the president himself — than it does about the vagaries of campaign finance.” Actually, it says more about the president’s penchant for telling untruths.

Belatedly, we learn that Jewish-American leaders had serious concerns all along about Obama’s Middle East policy. How brave of them to go public only when Obama’s political standing is in decline.

Democrats finally run out of patience with Jerry Brown and demand that he apologize for a campaign associate who called Meg Whitman a “whore.” Yes, there goes the Golden State. Again.

Much too late, Obama gets around to publicly calling for the release of Chinese dissident and now Nobel Peace Prize winner Liu Xiaobo.

No rush — the Arab League stalls, hoping the Obami might up the bribes incentives for Bibi to extend the settlement moratorium. “Arab countries will give the US one month to find a compromise which can save peace talks between Israel and the Palestinians after negotiations stalled over the issue of Israeli building in West Bank settlements, AFP reported a diplomat at the Arab League meeting in Libya as saying on Friday. The unnamed diplomat said that a resolution to be approved later Friday by the Arab League Follow-up Committee on the peace process calls for the US administration to be given ‘a one month chance to seek the resumption of negotiations, including a halt to settlement [building].'”

Suddenly, David Broder discovers Rob Portman: “Now 54 and a fitness fanatic, Portman has achieved his status by being smart, disciplined and a team player. Business people know he does his homework, and Democrats find him approachable. Except for [Mitch] Daniels, there are few Republicans who have delved as deeply into fiscal and budgetary policy, trade and health care as has Portman, who notably expanded the Office of Management and Budget’s focus on Medicare and Medicaid, even when Bush showed little interest in the issue.”

An overnight sensation: Wisconsin GOP Senate candidate Ron Johnson. “In this year of political surprises, Mr. Johnson inhabits a niche all his own. He emerged from the tea party without being fully of it. … Mr. Johnson says he employs 120 people at a single plant that makes specialized plastics. ‘I’m not some big corporation. I run the type of business [that] is the backbone of our economy, the engine of job creation.’ America’s prosperity stems from its ‘freedoms, the free market,’ Mr. Johnson says. ‘I think people get that.'”

Eventually, we come full circle. Bush administration critic Jack Goldsmith argues we shouldn’t have military tribunals or civil trials. Just lock ‘em up. Sounds good to me.

It took long enough. Jeffrey Goldberg confirms that Matthew Yglesias is an ignoramus when it comes to Israel.

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START Grinds to a Halt

The votes in the Senate aren’t there for the crowning glory of Obama’s “reset” strategy with Russia:

The treaty, called New Start, was supposed to be the relatively quick and easy first step leading to a series of much harder and more sweeping moves to stop the spread of nuclear weapons. Instead, a Senate committee on Tuesday shelved the treaty until fall, when it faces an uncertain future in the midst of a hotly contested election season.

The White House remains confident that it will get the pact approved eventually, possibly in a postelection lame-duck session, and it accepted the delay as a way to win over Republican senators who asked for more time to address their concerns. But even if the treaty does pass in the end, the long process of negotiation and ratification has pushed back the rest of Mr. Obama’s program and has raised obstacles to the more controversial measures.

This is a major embarrassment for the president, and yet another sign that he is losing political capital at a frightful pace. Moreover, it’s one more indication that lawmakers will become increasingly resistant to the president’s agenda, as regards both domestic and foreign policy (the Senate already blocked the confirmation of his ambassador to Syria).

It also highlights how inept is his foreign policy team, and how inapt is the administration’s “jam it through” strategy when it comes to national security:

Some conservatives said that Mr. Obama’s agenda was never all that realistic and that he would be wise to seek a broader consensus. “Trying to do treaties and national security policy as if they’re health care is a bad call,” said one such critic, Henry D. Sokolski, executive director of the Nonproliferation Policy Education Center. “You don’t do this by one vote. You do this by overwhelming majority. They need to learn to work with the other side.”

And at least for now, the Obama team concedes that its dream of a second arms treaty with Russia is kaput.

As a substantive matter, this is a positive development. In addition to the treaty’s other infirmities (most glaring, the impact on our ability to proceed with missile-defense development), there are real constitutional concerns about a treaty that embodies Obama’s fetish for multilateral institutions. Jack Goldsmith and Jeremy Rabkin explain:

[New START creates] a Bilateral Consultative Commission with power to approve “additional measures as may be necessary to improve the viability and effectiveness of the treaty.” The U.S. and Russian executive branches can implement these measures and thus amend U.S. treaty obligations — without returning to the U.S. Senate or the Russian Duma.

Could the commission constrain missile defense? It is empowered to “resolve questions related to the applicability of provisions of the Treaty to a new kind of strategic offensive arm.” The treaty’s preamble recognizes “the interrelationship between strategic offensive arms and strategic defensive arms.” The commission might have jurisdiction over missile defense through this interrelationship. Russia has already warned that it might withdraw from the treaty if the United States develops missile defenses. Limits on missile defense systems thus might be “necessary to improve the viability and effectiveness of the Treaty.”

In short, the Senate should not only be wary of what damage the treaty does to our national security; it should also be concerned about what it does to the Constitution and the Senate’s own powers (“as more authority for making international agreements is transferred to the executive branch and international organizations, the cumulative effect of these arrangements becomes increasingly hard to square with the Senate’s constitutional role in the treaty-making process and, more generally, with separation of powers”).

START is a microcosm of many of the shortcomings of the Obama administration — excessive deference to international rivals, disrespect shown the other branches of government, and political tone-deafness (the Obami really thought this would glide through the Senate?). With lawmakers increasingly willing to flex their own political muscle, the first two of these ailments may be minimized. Unfortunately for the Obami, there’s no magic cure for the third.

The votes in the Senate aren’t there for the crowning glory of Obama’s “reset” strategy with Russia:

The treaty, called New Start, was supposed to be the relatively quick and easy first step leading to a series of much harder and more sweeping moves to stop the spread of nuclear weapons. Instead, a Senate committee on Tuesday shelved the treaty until fall, when it faces an uncertain future in the midst of a hotly contested election season.

The White House remains confident that it will get the pact approved eventually, possibly in a postelection lame-duck session, and it accepted the delay as a way to win over Republican senators who asked for more time to address their concerns. But even if the treaty does pass in the end, the long process of negotiation and ratification has pushed back the rest of Mr. Obama’s program and has raised obstacles to the more controversial measures.

This is a major embarrassment for the president, and yet another sign that he is losing political capital at a frightful pace. Moreover, it’s one more indication that lawmakers will become increasingly resistant to the president’s agenda, as regards both domestic and foreign policy (the Senate already blocked the confirmation of his ambassador to Syria).

It also highlights how inept is his foreign policy team, and how inapt is the administration’s “jam it through” strategy when it comes to national security:

Some conservatives said that Mr. Obama’s agenda was never all that realistic and that he would be wise to seek a broader consensus. “Trying to do treaties and national security policy as if they’re health care is a bad call,” said one such critic, Henry D. Sokolski, executive director of the Nonproliferation Policy Education Center. “You don’t do this by one vote. You do this by overwhelming majority. They need to learn to work with the other side.”

And at least for now, the Obama team concedes that its dream of a second arms treaty with Russia is kaput.

As a substantive matter, this is a positive development. In addition to the treaty’s other infirmities (most glaring, the impact on our ability to proceed with missile-defense development), there are real constitutional concerns about a treaty that embodies Obama’s fetish for multilateral institutions. Jack Goldsmith and Jeremy Rabkin explain:

[New START creates] a Bilateral Consultative Commission with power to approve “additional measures as may be necessary to improve the viability and effectiveness of the treaty.” The U.S. and Russian executive branches can implement these measures and thus amend U.S. treaty obligations — without returning to the U.S. Senate or the Russian Duma.

Could the commission constrain missile defense? It is empowered to “resolve questions related to the applicability of provisions of the Treaty to a new kind of strategic offensive arm.” The treaty’s preamble recognizes “the interrelationship between strategic offensive arms and strategic defensive arms.” The commission might have jurisdiction over missile defense through this interrelationship. Russia has already warned that it might withdraw from the treaty if the United States develops missile defenses. Limits on missile defense systems thus might be “necessary to improve the viability and effectiveness of the Treaty.”

In short, the Senate should not only be wary of what damage the treaty does to our national security; it should also be concerned about what it does to the Constitution and the Senate’s own powers (“as more authority for making international agreements is transferred to the executive branch and international organizations, the cumulative effect of these arrangements becomes increasingly hard to square with the Senate’s constitutional role in the treaty-making process and, more generally, with separation of powers”).

START is a microcosm of many of the shortcomings of the Obama administration — excessive deference to international rivals, disrespect shown the other branches of government, and political tone-deafness (the Obami really thought this would glide through the Senate?). With lawmakers increasingly willing to flex their own political muscle, the first two of these ailments may be minimized. Unfortunately for the Obami, there’s no magic cure for the third.

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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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A Bipartisan Terror Trial

It’s nice to know that, according to the Washington Post, “President Obama is planning to insert himself into the debate about where to try the accused mastermind of the Sept. 11, 2001,” although this raises the obvious question of why he hadn’t inserted himself into the debate before now. If George W. Bush had done something like this, he would have been accused of being dangerously disengaged, intellectually uncurious, etc. It is no doubt expecting too much to expect the MSM to lodge similar accusations against the current president.

But now that Obama is getting engaged, I hope this former law professor looks beyond the options currently on offer — civil trial vs. military commissions — and puts his influence behind a third possibility: National Security Courts to be run by federal judges but with special rules of procedure to make it easier to convict terrorists. There would, for example, be no demand for Miranda rights and no absolute bar on hearsay evidence. This is a proposal that has been knocking around for a while and has picked up bipartisan support — including that of liberal law professor Neal Katyal, conservative law professor Jack Goldsmith, conservative former prosecutor Andrew C. McCarthy, and centrist journalist Stuart Taylor Jr. Yet it has gone nowhere in Congress. This is an issue where the liberal-conservative divide appears bridgeable, if only Obama would put his personal prestige behind the proposal.

It’s nice to know that, according to the Washington Post, “President Obama is planning to insert himself into the debate about where to try the accused mastermind of the Sept. 11, 2001,” although this raises the obvious question of why he hadn’t inserted himself into the debate before now. If George W. Bush had done something like this, he would have been accused of being dangerously disengaged, intellectually uncurious, etc. It is no doubt expecting too much to expect the MSM to lodge similar accusations against the current president.

But now that Obama is getting engaged, I hope this former law professor looks beyond the options currently on offer — civil trial vs. military commissions — and puts his influence behind a third possibility: National Security Courts to be run by federal judges but with special rules of procedure to make it easier to convict terrorists. There would, for example, be no demand for Miranda rights and no absolute bar on hearsay evidence. This is a proposal that has been knocking around for a while and has picked up bipartisan support — including that of liberal law professor Neal Katyal, conservative law professor Jack Goldsmith, conservative former prosecutor Andrew C. McCarthy, and centrist journalist Stuart Taylor Jr. Yet it has gone nowhere in Congress. This is an issue where the liberal-conservative divide appears bridgeable, if only Obama would put his personal prestige behind the proposal.

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Close Gitmo, Open the National Security Court

In the current issue of Foreign Affairs, Ken Roth of Human Rights Watch presents the maximalist position of civil liberties advocates when it comes to the War on Terror: He argues not only that we should close the detention facility at Guantanamo (which I agree with), but also that we should either try suspects in the criminal courts under standard criminal procedures or else release them. That’s going a bit too far for me, or, I suspect, most other Americans. To see why, consider this AP report:

Al-Arabiya television reports that a former Guantanamo detainee carried out a recent suicide bombing in the northern Iraqi city of Mosul.

A cousin says Abdullah Saleh al-Ajmi, a Kuwaiti released from Guantanamo in 2005, was reported missing two weeks ago and his family learned of his death Thursday through a friend in Iraq.

The cousin, Salem al-Ajmi, told Al-Arabiya on Thursday that the former detainee was behind the latest attack in Mosul, although he did not provide more details.

Three suicide car bombers targeted Iraqi security forces in Mosul on April 26, killing at least seven people.

Because it was “only” Iraqis who were killed, this apparent attack by a former Gitmo detainee will not cause much uproar in the United States. But imagine if he had struck not in Mosul but in New York, Paris, or London. Then it would be a different story. To avoid such a dire scenario, we need to have a way of dealing with detainees that goes beyond the normal safeguards of the criminal justice system.

Jack Goldsmith and Neal Katyal–the former a conservative law professor who served in the Bush Justice Department, the latter a liberal law professor who represented one of the Gitmo detainees in a successful appeal to the Supreme Court in 2006–have proposed just such a system: setting up a federal National Security Court run by specially selected federal judges. Roth argues against this idea, but it makes a lot of sense to me.

In the current issue of Foreign Affairs, Ken Roth of Human Rights Watch presents the maximalist position of civil liberties advocates when it comes to the War on Terror: He argues not only that we should close the detention facility at Guantanamo (which I agree with), but also that we should either try suspects in the criminal courts under standard criminal procedures or else release them. That’s going a bit too far for me, or, I suspect, most other Americans. To see why, consider this AP report:

Al-Arabiya television reports that a former Guantanamo detainee carried out a recent suicide bombing in the northern Iraqi city of Mosul.

A cousin says Abdullah Saleh al-Ajmi, a Kuwaiti released from Guantanamo in 2005, was reported missing two weeks ago and his family learned of his death Thursday through a friend in Iraq.

The cousin, Salem al-Ajmi, told Al-Arabiya on Thursday that the former detainee was behind the latest attack in Mosul, although he did not provide more details.

Three suicide car bombers targeted Iraqi security forces in Mosul on April 26, killing at least seven people.

Because it was “only” Iraqis who were killed, this apparent attack by a former Gitmo detainee will not cause much uproar in the United States. But imagine if he had struck not in Mosul but in New York, Paris, or London. Then it would be a different story. To avoid such a dire scenario, we need to have a way of dealing with detainees that goes beyond the normal safeguards of the criminal justice system.

Jack Goldsmith and Neal Katyal–the former a conservative law professor who served in the Bush Justice Department, the latter a liberal law professor who represented one of the Gitmo detainees in a successful appeal to the Supreme Court in 2006–have proposed just such a system: setting up a federal National Security Court run by specially selected federal judges. Roth argues against this idea, but it makes a lot of sense to me.

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Toobin on Gitmo

Jeffrey Toobin has a pretty good overview in the current issue of the New Yorker of the whole issue of Guatanamo and the handling of terrorist detainees–especially useful for those like me who have not followed the issue super-closely. Two points in particular jumped out at me.

1) “But, in 2004, the Supreme Court ruled, in Rasul v. Bush, that, because the Guantánamo base was under the exclusive control of the U.S. military, the detainees were effectively on American soil and had the right to bring habeas-corpus petitions in federal court.”

This is something that conservative critics of John McCain don’t seem to have grasped–that, rightly or wrongly, the Supreme Court has already conferred rights on detainees at Gitmo and they probably won’t gain any more rights simply by being transferred to the mainland, as McCain has proposed. (Full disclosure: I am a foreign policy adviser to the McCain campaign.)

2) Neal Katyal and Jack Goldsmith–a liberal and a conservative law professor–have come up with an idea for trying detainees: “a national-security court:”

According to their proposal, which was recently the subject of a conference sponsored by American University’s Washington College of Law and the Brookings Institution, sitting federal judges would preside over proceedings in which prosecutors would make the case that a person should be detained. There would be trials of sorts, and detainees would have lawyers, but they would have fewer rights than in a criminal case. Hearsay evidence may be admissible-so government agents could testify about what informants told them-and there would be no requirement for Miranda warnings before interrogations.

This seems like an excellent idea and one that could address concerns that if detainees are moved from Gitmo they will be afforded all the same rights as normal criminal defendants.

Of course even beyond the issue of trials there is the equally vital issue of preventative detention: There is insufficient evidence against many of the Gitmo detainees to convict them in a court of law but sufficient evidence to hold them indefinitely because of the risk that if released they would go back to terrorism. Obviously this needs to be part of any longterm legal solution. But simply keeping them at Gitmo will not do anything to resolve this thorny issue–and all the while it will continue to cost us international support.

Jeffrey Toobin has a pretty good overview in the current issue of the New Yorker of the whole issue of Guatanamo and the handling of terrorist detainees–especially useful for those like me who have not followed the issue super-closely. Two points in particular jumped out at me.

1) “But, in 2004, the Supreme Court ruled, in Rasul v. Bush, that, because the Guantánamo base was under the exclusive control of the U.S. military, the detainees were effectively on American soil and had the right to bring habeas-corpus petitions in federal court.”

This is something that conservative critics of John McCain don’t seem to have grasped–that, rightly or wrongly, the Supreme Court has already conferred rights on detainees at Gitmo and they probably won’t gain any more rights simply by being transferred to the mainland, as McCain has proposed. (Full disclosure: I am a foreign policy adviser to the McCain campaign.)

2) Neal Katyal and Jack Goldsmith–a liberal and a conservative law professor–have come up with an idea for trying detainees: “a national-security court:”

According to their proposal, which was recently the subject of a conference sponsored by American University’s Washington College of Law and the Brookings Institution, sitting federal judges would preside over proceedings in which prosecutors would make the case that a person should be detained. There would be trials of sorts, and detainees would have lawyers, but they would have fewer rights than in a criminal case. Hearsay evidence may be admissible-so government agents could testify about what informants told them-and there would be no requirement for Miranda warnings before interrogations.

This seems like an excellent idea and one that could address concerns that if detainees are moved from Gitmo they will be afforded all the same rights as normal criminal defendants.

Of course even beyond the issue of trials there is the equally vital issue of preventative detention: There is insufficient evidence against many of the Gitmo detainees to convict them in a court of law but sufficient evidence to hold them indefinitely because of the risk that if released they would go back to terrorism. Obviously this needs to be part of any longterm legal solution. But simply keeping them at Gitmo will not do anything to resolve this thorny issue–and all the while it will continue to cost us international support.

Read Less




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