Commentary Magazine


Topic: Jay Bybee

Holder — a People Pleaser!

Another entry in the Eric Holder “Can you believe this?” file comes with this report (h/t Main Justice):

In January, after a review by the Office of Professional Responsibility concluded that the authors of the torture memos had committed professional misconduct, Holder allowed the supervisor of that office, David Margolis, to overturn the committee’s conclusion and absolve the lawyers of wrongdoing. Sources close to Holder say that he was disappointed by Margolis’s decision and believed the finding of misconduct was correct — but was unwilling to overrule a nonpolitical employee on such a sensitive issue.

Disappointed? Indeed, he must have been, for the entire mission of DOJ in the first two years of the administration seems to have been defined by a “not Bush” or “get Bushies” mentality. Don’t let the civil rights laws be applied against Black defendants. Don’t follow the Office of Legal Counsel opinion on DC voting rights. Release detainee-abuse photos. Go after John Yoo and Jay Bybee. The problem, however, was that each of these highly politicized decisions was legally flawed and politically untenable even to those in the Department. After all, career attorneys at DOJ did not welcome the investigation of one set of lawyers by a new administration, which took issue with the policy calls of its predecessors.

The rest of the lengthy piece is mostly a rehash of the stories we have heard before — the White House vs. DOJ on terror policy and self-congratulation about the Obama team’s record on civil rights (well, for certain types of cases). But this sums up Holder’s central flaw fairly well and explains why, after replete evidence of his role in the pardon of Marc Rich and Puerto Rican terrorists, he never should have been confirmed:

Like any good political appointee, he was prepared to defend the policy whether he liked it or not. And in that case, maybe it didn’t matter what he supported; promoting the policy was supporting it. I was reminded of something one of his friends had told me, a former DOJ official who has known Holder since the beginning of his career: “Eric has this instinct to please. That’s his weakness. He doesn’t have to be told what to do — he’s willing to do whatever it takes. It’s his survival mechanism in Washington.”

But it makes for a rotten attorney general. And in the case of the Obama administration, it made for a top lawyer far too willing to accommodate the worst leftist impulses in the White House and in the increasingly politicized ranks of the Justice Department. Maybe Holder should start spending more time with his family.

Another entry in the Eric Holder “Can you believe this?” file comes with this report (h/t Main Justice):

In January, after a review by the Office of Professional Responsibility concluded that the authors of the torture memos had committed professional misconduct, Holder allowed the supervisor of that office, David Margolis, to overturn the committee’s conclusion and absolve the lawyers of wrongdoing. Sources close to Holder say that he was disappointed by Margolis’s decision and believed the finding of misconduct was correct — but was unwilling to overrule a nonpolitical employee on such a sensitive issue.

Disappointed? Indeed, he must have been, for the entire mission of DOJ in the first two years of the administration seems to have been defined by a “not Bush” or “get Bushies” mentality. Don’t let the civil rights laws be applied against Black defendants. Don’t follow the Office of Legal Counsel opinion on DC voting rights. Release detainee-abuse photos. Go after John Yoo and Jay Bybee. The problem, however, was that each of these highly politicized decisions was legally flawed and politically untenable even to those in the Department. After all, career attorneys at DOJ did not welcome the investigation of one set of lawyers by a new administration, which took issue with the policy calls of its predecessors.

The rest of the lengthy piece is mostly a rehash of the stories we have heard before — the White House vs. DOJ on terror policy and self-congratulation about the Obama team’s record on civil rights (well, for certain types of cases). But this sums up Holder’s central flaw fairly well and explains why, after replete evidence of his role in the pardon of Marc Rich and Puerto Rican terrorists, he never should have been confirmed:

Like any good political appointee, he was prepared to defend the policy whether he liked it or not. And in that case, maybe it didn’t matter what he supported; promoting the policy was supporting it. I was reminded of something one of his friends had told me, a former DOJ official who has known Holder since the beginning of his career: “Eric has this instinct to please. That’s his weakness. He doesn’t have to be told what to do — he’s willing to do whatever it takes. It’s his survival mechanism in Washington.”

But it makes for a rotten attorney general. And in the case of the Obama administration, it made for a top lawyer far too willing to accommodate the worst leftist impulses in the White House and in the increasingly politicized ranks of the Justice Department. Maybe Holder should start spending more time with his family.

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Hiding Facts in a Scandal Never Works

Since the Obama team pulled the plug on the voter-intimidation case against the New Black Panther Party, the administration has tried to keep the facts under wraps and the relevant documents and witnesses from surfacing. But this never works in Washington. In these sorts of scandals, the facts will still come out one way or another.

The new Congress with GOP chairmen will have the power to subpoena witnesses and documents and then take the administration to federal court if its stonewalling continues. Judicial Watch is already in federal court challenging the administration’s withholding of documents from Thomas Perrelli, the associate attorney general. Then there are Justice Department attorneys who fear they may be caught in the scandal — because they complied with Obama appointees’ directions to withhold documents improperly, provided misleading answers to discovery requests, or aided in obstructing investigations. Now they may very well decide to assist investigators in an effort to distance themselves from the wrongdoers. There are many witnesses to the meetings, e-mails, documents, and discussions described by  Chris Coates and J. Christian Adams. It’s inconceivable all of them will remain silent.

The Justice Department’s inspector general, Glenn Fine, is, or should be, another source of concern for the administration. When Reps. Frank Wolf and Lamar Smith were struggling in 2009 to get facts about the dismissal of the New Black Panther case, they wrote to Fine to implore him to open an investigation. Now, for many years, Fine has pushed for greater statutory authority to act as DOJ’s centralized watchdog, which in essence would overshadow the Office of Professional Responsibility (whose reputation has been poor and only deteriorated when its work on the John Yoo and Jay Bybee investigation was repudiated). In 2009, Fine said he lacked the authority to pursue the matter. But that was when the Obama team was riding high and ample evidence of systemic wrongdoing hadn’t been confirmed. In September 2010, both Obama’s political standing and the state of the evidence have changed.

Sure enough, Fine recently informed Wolf and Smith that he’s now undertaking that investigation. The New Black Panther Party scandal might finally give Fine the visibility and respect he has long sought. And it sure won’t harm his reputation with the new Congress.

Since the Obama team pulled the plug on the voter-intimidation case against the New Black Panther Party, the administration has tried to keep the facts under wraps and the relevant documents and witnesses from surfacing. But this never works in Washington. In these sorts of scandals, the facts will still come out one way or another.

The new Congress with GOP chairmen will have the power to subpoena witnesses and documents and then take the administration to federal court if its stonewalling continues. Judicial Watch is already in federal court challenging the administration’s withholding of documents from Thomas Perrelli, the associate attorney general. Then there are Justice Department attorneys who fear they may be caught in the scandal — because they complied with Obama appointees’ directions to withhold documents improperly, provided misleading answers to discovery requests, or aided in obstructing investigations. Now they may very well decide to assist investigators in an effort to distance themselves from the wrongdoers. There are many witnesses to the meetings, e-mails, documents, and discussions described by  Chris Coates and J. Christian Adams. It’s inconceivable all of them will remain silent.

The Justice Department’s inspector general, Glenn Fine, is, or should be, another source of concern for the administration. When Reps. Frank Wolf and Lamar Smith were struggling in 2009 to get facts about the dismissal of the New Black Panther case, they wrote to Fine to implore him to open an investigation. Now, for many years, Fine has pushed for greater statutory authority to act as DOJ’s centralized watchdog, which in essence would overshadow the Office of Professional Responsibility (whose reputation has been poor and only deteriorated when its work on the John Yoo and Jay Bybee investigation was repudiated). In 2009, Fine said he lacked the authority to pursue the matter. But that was when the Obama team was riding high and ample evidence of systemic wrongdoing hadn’t been confirmed. In September 2010, both Obama’s political standing and the state of the evidence have changed.

Sure enough, Fine recently informed Wolf and Smith that he’s now undertaking that investigation. The New Black Panther Party scandal might finally give Fine the visibility and respect he has long sought. And it sure won’t harm his reputation with the new Congress.

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When Does an Unfulfilled Political Promise Become a Lie?

The president and his hapless attorney general (who, like the former director of National Intelligence, Dennis Blair, seems to be handicapped by his inability to go out in public without unnerving political supporters and giving fodder to opponents) repeatedly promised that they would reverse the Bush administration’s alleged proclivity to politicize the administration of justice. In the end, the accusations against the Bush team proved to be generally groundless (John Yoo and Jay Bybee were cleared, and the allegations that Yoo intentionally provided faulty legal advice were specifically rejected) or trivial (e.g., replacing nine U.S. attorneys, in contrast to other administrations, which replaced all of them). And in the politicization department, no one holds a candle to the Obama team.

This report explains that for all the crying about upholding our legal traditions and rejecting the “lawless” Bush team, the Obama gang is delaying a decision on the KSM trial until the election is in the rear-view mirror. It’s hard to get more political than that (unless, of course, it’s dismissing the New Black Panther intimidation case because left-wing civil rights groups and Holder’s lawyers don’t like enforcing the civil rights laws against minority defendants). Josh Gerstein reports:

Attorney General Eric Holder said the decision over where to hold the trial for alleged 9/11 plotter Khalid Sheikh Mohammad was “weeks away” — three months ago. Now advocates on both sides of the issue say they expect the Obama administration to punt the decision until after the November midterm elections — when the controversial plan could do less damage to the political fortunes of endangered Democrats and might face less resistance on Capitol Hill.

Holder last week explicitly denied the midterms had anything to do with the timing but would only say discussions are continuing. The White House had no comment. Any further stalling could pose a serious political problem for President Barack Obama on the left — where advocates cheered his administration’s plan to break from the Bush administration and give top al-Qaida figures trials in American courtrooms, a sign to the country and the world that U.S.-style justice was enough to try to men accused of the worst crimes in the nation’s history. … Advocates say the signs of foot-dragging are evident. The Democrats’ political fortunes have dipped further, talks on the broader issue of Guantanamo closure have ground to a halt and the House took a little-noticed vote to block transporting any Gitmo detainees to the United States, for any reason.

The Obama administration plainly doesn’t have the nerve to stand up to its own base, so it delays and delays. Not exactly upholding our fundamental values, as Obama often preened. When the Bush administration had to combat endless attacks on its detainee procedures, the left, of course, excoriated the Bush Justice Department for dragging its feet and holding detainees in limbo. Some are shocked, shocked, to discover that the Obama gang is much worse:

“The worst possible outcome is not making a decision. … There’s a genuinely weird paralysis I would not have predicted,” said Ben Wittes, a Brookings Institution scholar who has urged Obama to announce that there will be no trials for the 9/11 suspects. “It’s disgraceful and they should be embarrassed by it. There are pros and cons of any approach you take, but there is no good argument to let this fester indefinitely.”

If there were Democrats willing to exercise any semblance of congressional oversight, the administration might be pressured to end the “weird” and entirely self-imposed paralysis. But for now, onlookers can only fume:

While “swift and certain justice” once was a regular part of the White House lexicon on Guantanamo and detainee trials, that catchphrase has now vanished along with the prospect of anything swift happening to most of the prisoners slated for continued detention or trial.

“Both the 9/11 and the Cole families had the president look them in the eye and say, ‘We’re going to close Gitmo, move forward with this process, and hold people accountable,’” said Commander Kirk Lippold, a proponent of military trials who was the commanding officer aboard the U.S.S. Cole when it was attacked in Yemen in 2000. “When does an unfulfilled political promise become a lie?” Lippold asked.

Now, there’s a question for Holder for his next outing on Capitol Hill.

The president and his hapless attorney general (who, like the former director of National Intelligence, Dennis Blair, seems to be handicapped by his inability to go out in public without unnerving political supporters and giving fodder to opponents) repeatedly promised that they would reverse the Bush administration’s alleged proclivity to politicize the administration of justice. In the end, the accusations against the Bush team proved to be generally groundless (John Yoo and Jay Bybee were cleared, and the allegations that Yoo intentionally provided faulty legal advice were specifically rejected) or trivial (e.g., replacing nine U.S. attorneys, in contrast to other administrations, which replaced all of them). And in the politicization department, no one holds a candle to the Obama team.

This report explains that for all the crying about upholding our legal traditions and rejecting the “lawless” Bush team, the Obama gang is delaying a decision on the KSM trial until the election is in the rear-view mirror. It’s hard to get more political than that (unless, of course, it’s dismissing the New Black Panther intimidation case because left-wing civil rights groups and Holder’s lawyers don’t like enforcing the civil rights laws against minority defendants). Josh Gerstein reports:

Attorney General Eric Holder said the decision over where to hold the trial for alleged 9/11 plotter Khalid Sheikh Mohammad was “weeks away” — three months ago. Now advocates on both sides of the issue say they expect the Obama administration to punt the decision until after the November midterm elections — when the controversial plan could do less damage to the political fortunes of endangered Democrats and might face less resistance on Capitol Hill.

Holder last week explicitly denied the midterms had anything to do with the timing but would only say discussions are continuing. The White House had no comment. Any further stalling could pose a serious political problem for President Barack Obama on the left — where advocates cheered his administration’s plan to break from the Bush administration and give top al-Qaida figures trials in American courtrooms, a sign to the country and the world that U.S.-style justice was enough to try to men accused of the worst crimes in the nation’s history. … Advocates say the signs of foot-dragging are evident. The Democrats’ political fortunes have dipped further, talks on the broader issue of Guantanamo closure have ground to a halt and the House took a little-noticed vote to block transporting any Gitmo detainees to the United States, for any reason.

The Obama administration plainly doesn’t have the nerve to stand up to its own base, so it delays and delays. Not exactly upholding our fundamental values, as Obama often preened. When the Bush administration had to combat endless attacks on its detainee procedures, the left, of course, excoriated the Bush Justice Department for dragging its feet and holding detainees in limbo. Some are shocked, shocked, to discover that the Obama gang is much worse:

“The worst possible outcome is not making a decision. … There’s a genuinely weird paralysis I would not have predicted,” said Ben Wittes, a Brookings Institution scholar who has urged Obama to announce that there will be no trials for the 9/11 suspects. “It’s disgraceful and they should be embarrassed by it. There are pros and cons of any approach you take, but there is no good argument to let this fester indefinitely.”

If there were Democrats willing to exercise any semblance of congressional oversight, the administration might be pressured to end the “weird” and entirely self-imposed paralysis. But for now, onlookers can only fume:

While “swift and certain justice” once was a regular part of the White House lexicon on Guantanamo and detainee trials, that catchphrase has now vanished along with the prospect of anything swift happening to most of the prisoners slated for continued detention or trial.

“Both the 9/11 and the Cole families had the president look them in the eye and say, ‘We’re going to close Gitmo, move forward with this process, and hold people accountable,’” said Commander Kirk Lippold, a proponent of military trials who was the commanding officer aboard the U.S.S. Cole when it was attacked in Yemen in 2000. “When does an unfulfilled political promise become a lie?” Lippold asked.

Now, there’s a question for Holder for his next outing on Capitol Hill.

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Obama at Odds with Reality

Matt Welch writes:

The president, who promised in both word and style to usher in a “new era” of Washington “responsibility,” routinely says things that aren’t true and supports initiatives that break campaign promises. When called on it, he mostly keeps digging. And when obliged to explain why American voters are turning so sharply away from his party and his policies, Obama pins the blame not on his own deviations from verity but on his failure to “explain” things “more clearly to the American people.”

This is not an occasional phenomenon. It has become an ingrained habit. As Welch details, Obama has insisted that he’s excluded lobbyists from government. (There are more than 40.) His repeated misstatements on his own health-care bill seem to assume no one is paying attention or is audacious enough to point out he is making stuff up. “It will cut the deficit.” Well, not with the Doc Fix or with any reasonable accounting method. “Special interests are against it.” Except for AARP, AMA,  and Big Insurance. As Supreme Court Justice Samuel Alito pointed out, Obama got the Supreme Court’s decision in Citizens United wrong, too.

And then there are the misdirections and twisted explanations on national security. He routinely says he “banned torture,” which, of course, was illegal long before he assumed office. (He should know this because John Yoo and Jay Bybee were hounded by a kangaroo Justice Department investigation for allegedly facilitating violation of torture prohibitions.) He pulls the rug out from the Czech Republic and Poland, denying the obvious — that it was meant as a sop to the Russians. In pursuing his Israel policy, he offers fractured history and denies the existence of past agreements by the U.S. on settlements.

Even when recounting his own actions, he strays from the truth. No, he really didn’t condemn Palestinian violence, as he claimed. No, he really hasn’t gone to bat for human rights, as he asserted in Oslo. And on it goes.

This was the president who was supposedly freed from ideology and who would operate on facts and evidence. The reality is that the Obami operate as if the president has no obligation to fact check and to adhere to a standard of accuracy worthy of the office. It’s just campaign time 24/7 — and the operating standard is whatever will fly. In a very real sense, Obama has never had his facts or his premises rebutted. He was treated with kid gloves during the campaign, where his garbled history was never questioned and his assumptions were rarely challenged by the mainstream media. And well into his first-year term, a probing interview taking on his facts is the exception, not the rule. He has grown accustomed to parroting liberal dogma with nary a concern that anyone might call him on it. And when someone does — at the health-care summit — he is peeved, condescending, and impatient.

The ultra-liberal president is at odds with the Center-Right country he is trying to lead. But more important, he is at odds with reality — with cold, hard facts. Neither is sustainable for very long. The voters and reality have a way of catching up with presidents who try to ignore both.

Matt Welch writes:

The president, who promised in both word and style to usher in a “new era” of Washington “responsibility,” routinely says things that aren’t true and supports initiatives that break campaign promises. When called on it, he mostly keeps digging. And when obliged to explain why American voters are turning so sharply away from his party and his policies, Obama pins the blame not on his own deviations from verity but on his failure to “explain” things “more clearly to the American people.”

This is not an occasional phenomenon. It has become an ingrained habit. As Welch details, Obama has insisted that he’s excluded lobbyists from government. (There are more than 40.) His repeated misstatements on his own health-care bill seem to assume no one is paying attention or is audacious enough to point out he is making stuff up. “It will cut the deficit.” Well, not with the Doc Fix or with any reasonable accounting method. “Special interests are against it.” Except for AARP, AMA,  and Big Insurance. As Supreme Court Justice Samuel Alito pointed out, Obama got the Supreme Court’s decision in Citizens United wrong, too.

And then there are the misdirections and twisted explanations on national security. He routinely says he “banned torture,” which, of course, was illegal long before he assumed office. (He should know this because John Yoo and Jay Bybee were hounded by a kangaroo Justice Department investigation for allegedly facilitating violation of torture prohibitions.) He pulls the rug out from the Czech Republic and Poland, denying the obvious — that it was meant as a sop to the Russians. In pursuing his Israel policy, he offers fractured history and denies the existence of past agreements by the U.S. on settlements.

Even when recounting his own actions, he strays from the truth. No, he really didn’t condemn Palestinian violence, as he claimed. No, he really hasn’t gone to bat for human rights, as he asserted in Oslo. And on it goes.

This was the president who was supposedly freed from ideology and who would operate on facts and evidence. The reality is that the Obami operate as if the president has no obligation to fact check and to adhere to a standard of accuracy worthy of the office. It’s just campaign time 24/7 — and the operating standard is whatever will fly. In a very real sense, Obama has never had his facts or his premises rebutted. He was treated with kid gloves during the campaign, where his garbled history was never questioned and his assumptions were rarely challenged by the mainstream media. And well into his first-year term, a probing interview taking on his facts is the exception, not the rule. He has grown accustomed to parroting liberal dogma with nary a concern that anyone might call him on it. And when someone does — at the health-care summit — he is peeved, condescending, and impatient.

The ultra-liberal president is at odds with the Center-Right country he is trying to lead. But more important, he is at odds with reality — with cold, hard facts. Neither is sustainable for very long. The voters and reality have a way of catching up with presidents who try to ignore both.

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Holder’s No Good, Horrible Performance

As we’ve noted for sometime, Eric Holder is not exactly wowing either the Right or the Left. As Michael Gerson observes:

Attorney General Eric Holder is controversial on the left for preserving much of the Bush administration’s legal structure for conducting the war on terror. He is controversial on the right for overturning portions of that structure in ways that seem both clueless and reckless. But Holder is the most endangered member of the Obama Cabinet for a different reason: Just about everything he has touched has backfired.

We had the decision to release the enhanced interrogation memos and reinvestigate previously cleared CIA operatives. Result: widespread criticism. Then we had the recommendation to release the detainee-abuse photos. Result: countermanded. We had the advice to close Guantanamo prior to a full review. Result: stalled. We had the recommendation to relocate Guantanamo detainees to Illinois and to hold a public trial for KSM. Result: on hold. There was the Mirandizing of the Christmas Day bomber. Result: ridiculed. This week Holder suggested that we’d never capture Osama bin Laden, because, of course, we’d kill him if we found him. Result: rebuffed by two national-security officials. We also witnessed the ongoing legal persecution of John Yoo and Jay Bybee. Result: reversal by a career attorney who found gross incompetence within the Justice Department’s Office of Professional Responsibility. Then there is the race issue: the dismissal of the New Black Panther case and the accusation that we are a nation of “cowards.” Quite a track record, eh?

As Gerson concludes:

Sometimes haplessness can provoke sympathy. But Holder mixes ineptness with self-righteousness. Critics of his questionable choices, he says, “cower.” They lack “confidence in the American system of justice.” But there is another possibility. Perhaps Holder’s critics — in Congress, in the country and even within the White House — just lack confidence in his judgment.

For now, Holder doesn’t appear to be in immediate peril, in no small part because he has been spared (with a Democrat-controlled Congress) the humiliating oversight hearings of the sort Alberto Gonzales received. But one doubts whether he’ll be around at year’s end. At some point, he and the Obami will want to cut their losses.

As we’ve noted for sometime, Eric Holder is not exactly wowing either the Right or the Left. As Michael Gerson observes:

Attorney General Eric Holder is controversial on the left for preserving much of the Bush administration’s legal structure for conducting the war on terror. He is controversial on the right for overturning portions of that structure in ways that seem both clueless and reckless. But Holder is the most endangered member of the Obama Cabinet for a different reason: Just about everything he has touched has backfired.

We had the decision to release the enhanced interrogation memos and reinvestigate previously cleared CIA operatives. Result: widespread criticism. Then we had the recommendation to release the detainee-abuse photos. Result: countermanded. We had the advice to close Guantanamo prior to a full review. Result: stalled. We had the recommendation to relocate Guantanamo detainees to Illinois and to hold a public trial for KSM. Result: on hold. There was the Mirandizing of the Christmas Day bomber. Result: ridiculed. This week Holder suggested that we’d never capture Osama bin Laden, because, of course, we’d kill him if we found him. Result: rebuffed by two national-security officials. We also witnessed the ongoing legal persecution of John Yoo and Jay Bybee. Result: reversal by a career attorney who found gross incompetence within the Justice Department’s Office of Professional Responsibility. Then there is the race issue: the dismissal of the New Black Panther case and the accusation that we are a nation of “cowards.” Quite a track record, eh?

As Gerson concludes:

Sometimes haplessness can provoke sympathy. But Holder mixes ineptness with self-righteousness. Critics of his questionable choices, he says, “cower.” They lack “confidence in the American system of justice.” But there is another possibility. Perhaps Holder’s critics — in Congress, in the country and even within the White House — just lack confidence in his judgment.

For now, Holder doesn’t appear to be in immediate peril, in no small part because he has been spared (with a Democrat-controlled Congress) the humiliating oversight hearings of the sort Alberto Gonzales received. But one doubts whether he’ll be around at year’s end. At some point, he and the Obami will want to cut their losses.

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Marc Thiessen on Keep America Safe

Marc Thiessen makes a valiant attempt in his Washington Post column to defend the campaign mounted by the group Keep America Safe, led by Liz Cheney, against the hyperbolically dubbed “al-Qaeda Seven” — seven Justice Department lawyers who, prior to entering government service, defended detainees accused of working for al-Qaeda. He writes:

Would most Americans want to know if the Justice Department had hired a bunch of mob lawyers and put them in charge of mob cases? Or a group of drug cartel lawyers and put them in charge of drug cases? Would they want their elected representatives to find out who these lawyers were, which mob bosses and drug lords they had worked for, and what roles they were now playing at the Justice Department? Of course they would — and rightly so.

But the situation is hardly analogous. The pejorative phrases “mob lawyers” and “drug cartel lawyers” refer to attorneys whose practices are consist either solely or mainly of working for rich gangsters. In many cases these lawyers became more or less a part of the criminal enterprise themselves, often taking illegal actions such as carrying a mob boss’s orders to his underlings from jail.

There are in fact “terrorist lawyers” in this sense. For example Lynne Stewart, who was sentenced to 28 months in prison for passing messages from the “blind sheikh,” Omar Abdel Rahman, to his fellow terrorists. Or the French lawyer Isabelle Coutant-Peyre, who is engaged to marry Carlos the Jackal, and has compared the French police to the Gestapo.

If Stewart or Coutant-Peyre had been hired by the Department of Justice, I could see legitimate grounds for outrage. But the lawyers singled out by Keep America Safe are hardly in the same category. All they did was challenge the rules governing terrorist detainees or provide some representation to terrorist defendants. There is no suggestion that they favor terrorism or support al-Qaeda; all they did was what lawyers are supposed to do. As a group of Republican attorneys note:

Whether one believes in trial by military commission or in federal court, detainees will have access to counsel. … Good defense counsel is … key to ensuring that military commissions, federal juries, and federal judges have access to the best arguments and most rigorous factual presentations before making crucial decisions that affect both national security and paramount liberty interests.

Thiessen has a better point when he bemoans the double standard at work here. Many of those now outraged by the attacks on the Justice Department lawyers kept silent or applauded when John Yoo, Jay Bybee, and other honorable Bush administration lawyers were accused of being “war criminals” and threatened with prosecution for advocating a vigorous prosecution of the war against al-Qaeda. Perhaps this controversy will prove salutary if it will lead the Left to call off their attack dogs.

But there is an overriding cost that should be kept in mind: By focusing so much on the lower-level lawyers, Keep America Safe is missing the real problem. That starts at the top with Attorney General Eric Holder and President Obama, who seem willing to give terrorist defendants more rights than they received under the Bush administration — and more rights than most Americans think they deserve. I would suggest keeping the focus on Obama and Holder, not on underlings who are not the ultimate decision-makers here.

Marc Thiessen makes a valiant attempt in his Washington Post column to defend the campaign mounted by the group Keep America Safe, led by Liz Cheney, against the hyperbolically dubbed “al-Qaeda Seven” — seven Justice Department lawyers who, prior to entering government service, defended detainees accused of working for al-Qaeda. He writes:

Would most Americans want to know if the Justice Department had hired a bunch of mob lawyers and put them in charge of mob cases? Or a group of drug cartel lawyers and put them in charge of drug cases? Would they want their elected representatives to find out who these lawyers were, which mob bosses and drug lords they had worked for, and what roles they were now playing at the Justice Department? Of course they would — and rightly so.

But the situation is hardly analogous. The pejorative phrases “mob lawyers” and “drug cartel lawyers” refer to attorneys whose practices are consist either solely or mainly of working for rich gangsters. In many cases these lawyers became more or less a part of the criminal enterprise themselves, often taking illegal actions such as carrying a mob boss’s orders to his underlings from jail.

There are in fact “terrorist lawyers” in this sense. For example Lynne Stewart, who was sentenced to 28 months in prison for passing messages from the “blind sheikh,” Omar Abdel Rahman, to his fellow terrorists. Or the French lawyer Isabelle Coutant-Peyre, who is engaged to marry Carlos the Jackal, and has compared the French police to the Gestapo.

If Stewart or Coutant-Peyre had been hired by the Department of Justice, I could see legitimate grounds for outrage. But the lawyers singled out by Keep America Safe are hardly in the same category. All they did was challenge the rules governing terrorist detainees or provide some representation to terrorist defendants. There is no suggestion that they favor terrorism or support al-Qaeda; all they did was what lawyers are supposed to do. As a group of Republican attorneys note:

Whether one believes in trial by military commission or in federal court, detainees will have access to counsel. … Good defense counsel is … key to ensuring that military commissions, federal juries, and federal judges have access to the best arguments and most rigorous factual presentations before making crucial decisions that affect both national security and paramount liberty interests.

Thiessen has a better point when he bemoans the double standard at work here. Many of those now outraged by the attacks on the Justice Department lawyers kept silent or applauded when John Yoo, Jay Bybee, and other honorable Bush administration lawyers were accused of being “war criminals” and threatened with prosecution for advocating a vigorous prosecution of the war against al-Qaeda. Perhaps this controversy will prove salutary if it will lead the Left to call off their attack dogs.

But there is an overriding cost that should be kept in mind: By focusing so much on the lower-level lawyers, Keep America Safe is missing the real problem. That starts at the top with Attorney General Eric Holder and President Obama, who seem willing to give terrorist defendants more rights than they received under the Bush administration — and more rights than most Americans think they deserve. I would suggest keeping the focus on Obama and Holder, not on underlings who are not the ultimate decision-makers here.

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Yoo Gets the Last Word

John Yoo is entitled to dance a jig on the grave of Eric Holder’s credibility. And he does. He sums up the ludicrous witch hunt conducted by the Office of Professional Responsibility, which examined whether he and Jay Bybee violated their ethical obligations in providing legal advice on enhanced interrogation techniques:

Rank bias and sheer incompetence infused OPR’s investigation. OPR attorneys, for example, omitted a number of precedents that squarely supported the approach in the memoranda and undermined OPR’s preferred outcome. They declared that no Americans have a right of self-defense against a criminal prosecution, not even when they or their government agents attempt to stop terrorist attacks on the United States. OPR claimed that Congress enjoyed full authority over wartime strategy and tactics, despite decades of Justice Department opinions and practice defending the president’s commander-in-chief power. They accused us of violating ethical standards without ever defining them. They concocted bizarre conspiracy theories about which they never asked us, and for which they had no evidence, even though we both patiently—and with no legal obligation to do so—sat through days of questioning.

OPR’s investigation was so biased, so flawed, and so beneath the Justice Department’s own standards that last week the department’s ranking civil servant and senior ethicist, David Margolis, completely rejected its recommendations.

But who is ultimately responsible for this three-ring circus? The attorney general, of course. “Attorney General Holder could have stopped this sorry mess earlier, just as his predecessor had tried to do.” Yoo then describes the efforts of outgoing Attorney General Michael Mukasey and his deputy Mark Filip to critique the OPR’s sloppy work and end the investigation before they left office. But OPR “decided to run out the clock and push the investigation into the lap of the Obama administration.” And Holder let the investigation churn on and on until it was apparent that its work could not be defended and that the Justice Department risked humiliation were it to follow OPR’s error-ridden recommendation. Finally, David Margolis was brought in to clean up the mess, reverse the recommendations of OPR, and do what Holder could have done on his first day on the job: end the entire inquiry.

Yoo makes a key point: this is not simply about the persecution of two fine lawyers. It’s not even about the untold damage done to the Justice Department, which may find it difficult to find top-flight attorneys willing to stake their careers and savings by rolling the dice that some future administration won’t second-guess and investigate them. No, as Yoo points out, it’s about stopping the Justice Department from actively interfering with the serious business of the fighting a war against Islamic terrorists. (“Ending the Justice Department’s ethics witch hunt not only brought an unjust persecution to an end, but it protects the president’s constitutional ability to fight the enemies that threaten our nation today.”)

Now Holder needs to end the equally spurious reinvestigation of CIA agents who utilized enhanced interrogation methods and whom career prosecutors had previously declined to prosecute. And then he might reconsider whether Mirandizing terrorists and giving jihadists public trials are really helping us win a war. Or is it “criminal warlike activities“? That’s the problem, all right. And if Holder can’t give up the pipe dream of running a war from the ACLU handbook and conducting witch hunts to please the MoveOn.org crowd, Obama should find an attorney general who will.

John Yoo is entitled to dance a jig on the grave of Eric Holder’s credibility. And he does. He sums up the ludicrous witch hunt conducted by the Office of Professional Responsibility, which examined whether he and Jay Bybee violated their ethical obligations in providing legal advice on enhanced interrogation techniques:

Rank bias and sheer incompetence infused OPR’s investigation. OPR attorneys, for example, omitted a number of precedents that squarely supported the approach in the memoranda and undermined OPR’s preferred outcome. They declared that no Americans have a right of self-defense against a criminal prosecution, not even when they or their government agents attempt to stop terrorist attacks on the United States. OPR claimed that Congress enjoyed full authority over wartime strategy and tactics, despite decades of Justice Department opinions and practice defending the president’s commander-in-chief power. They accused us of violating ethical standards without ever defining them. They concocted bizarre conspiracy theories about which they never asked us, and for which they had no evidence, even though we both patiently—and with no legal obligation to do so—sat through days of questioning.

OPR’s investigation was so biased, so flawed, and so beneath the Justice Department’s own standards that last week the department’s ranking civil servant and senior ethicist, David Margolis, completely rejected its recommendations.

But who is ultimately responsible for this three-ring circus? The attorney general, of course. “Attorney General Holder could have stopped this sorry mess earlier, just as his predecessor had tried to do.” Yoo then describes the efforts of outgoing Attorney General Michael Mukasey and his deputy Mark Filip to critique the OPR’s sloppy work and end the investigation before they left office. But OPR “decided to run out the clock and push the investigation into the lap of the Obama administration.” And Holder let the investigation churn on and on until it was apparent that its work could not be defended and that the Justice Department risked humiliation were it to follow OPR’s error-ridden recommendation. Finally, David Margolis was brought in to clean up the mess, reverse the recommendations of OPR, and do what Holder could have done on his first day on the job: end the entire inquiry.

Yoo makes a key point: this is not simply about the persecution of two fine lawyers. It’s not even about the untold damage done to the Justice Department, which may find it difficult to find top-flight attorneys willing to stake their careers and savings by rolling the dice that some future administration won’t second-guess and investigate them. No, as Yoo points out, it’s about stopping the Justice Department from actively interfering with the serious business of the fighting a war against Islamic terrorists. (“Ending the Justice Department’s ethics witch hunt not only brought an unjust persecution to an end, but it protects the president’s constitutional ability to fight the enemies that threaten our nation today.”)

Now Holder needs to end the equally spurious reinvestigation of CIA agents who utilized enhanced interrogation methods and whom career prosecutors had previously declined to prosecute. And then he might reconsider whether Mirandizing terrorists and giving jihadists public trials are really helping us win a war. Or is it “criminal warlike activities“? That’s the problem, all right. And if Holder can’t give up the pipe dream of running a war from the ACLU handbook and conducting witch hunts to please the MoveOn.org crowd, Obama should find an attorney general who will.

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Re: Yoo and Bybee Cleared

More reviews are coming in for the work of the OPR lawyers who doggedly pursued John Yoo and Jay Bybee for two years. A 14-page letter dated January 19, 2009  is available, authored by Former Attorney General Michael Mukasey and his deputy Mark Filip and setting forth many of the identical criticisms that caused David Margolis to reject, finally, OPR’s work.

I also heard from Professor Ron Rotunda, an expert in constitutional law and legal ethics, with whom the Justice Department consulted during the OPR investigation. He was blunt: “I saw the ethics charges that the OPR staff made.  The materials are now publicly available. I think it is the OPR staff who should be investigated, for their shoddy, leak-prone, result-oriented, and — dare we say it — incompetent investigation.”

This unmasking of OPR’s incompetence and bias is not only important in so far as it completely vindicates Yoo and Bybee, though it certainly does that. It is also important because OPR remains a critical entity within the Justice Department. It is this group — whose unprofessionalism and bias have now been amply demonstrated at Yoo and Bybee’s expense — which, for example, is charged with investigation of the New Black Panther Party scandal. Do we suppose they will perform any more credibly in that inquiry? And recall as well that the head of OPR, Mary Patrice Brown, is reportedly under consideration for appointment to the federal bench. Well, I, for one, would much enjoy that confirmation hearing.

But more seriously, Attorney General Eric Holder has an obligation now to clean house and deal with those who leaked during the investigation in violation of their professional obligations. OPR has been entirely discredited and the stench will not dissipate until Holder takes appropriate action to — what is the phrase? — ah, yes, depoliticize and restore the credibility of his Department.

More reviews are coming in for the work of the OPR lawyers who doggedly pursued John Yoo and Jay Bybee for two years. A 14-page letter dated January 19, 2009  is available, authored by Former Attorney General Michael Mukasey and his deputy Mark Filip and setting forth many of the identical criticisms that caused David Margolis to reject, finally, OPR’s work.

I also heard from Professor Ron Rotunda, an expert in constitutional law and legal ethics, with whom the Justice Department consulted during the OPR investigation. He was blunt: “I saw the ethics charges that the OPR staff made.  The materials are now publicly available. I think it is the OPR staff who should be investigated, for their shoddy, leak-prone, result-oriented, and — dare we say it — incompetent investigation.”

This unmasking of OPR’s incompetence and bias is not only important in so far as it completely vindicates Yoo and Bybee, though it certainly does that. It is also important because OPR remains a critical entity within the Justice Department. It is this group — whose unprofessionalism and bias have now been amply demonstrated at Yoo and Bybee’s expense — which, for example, is charged with investigation of the New Black Panther Party scandal. Do we suppose they will perform any more credibly in that inquiry? And recall as well that the head of OPR, Mary Patrice Brown, is reportedly under consideration for appointment to the federal bench. Well, I, for one, would much enjoy that confirmation hearing.

But more seriously, Attorney General Eric Holder has an obligation now to clean house and deal with those who leaked during the investigation in violation of their professional obligations. OPR has been entirely discredited and the stench will not dissipate until Holder takes appropriate action to — what is the phrase? — ah, yes, depoliticize and restore the credibility of his Department.

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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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Another About-Face?

In a remarkable and entirely welcome reversal, the Eric Holder Justice Department has retreated in its effort to pursue ethics charges against Bush administration lawyers who authored memos on enhanced interrogation. Newsweek reports on the internal probe by the Justice Department’s Office of Professional Responsibility (OPR):

While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources.

A draft report prepared in the waning days of the Bush administration by OPR was roundly criticized by departing Attorney General Michael Mukasey and his deputy Mark Filip. As I reported previously:

One former Justice official with knowledge of the matter says, “It is safe to say they had a number of concerns about the draft report both as to the timing and the substance” of the work by OPR. There is, this official reports, “institutional unease by senior career people” at Justice that good faith legal work may place attorneys in peril. “The department won’t be able to attract the best and the brightest. You really want lawyers who will give candid legal advice.”

But the question remains why, and why now, the department has come to its senses. Newsweek pointedly observes: “A Justice official declined to explain why David Margolis softened the original finding, but noted that he is a highly respected career lawyer who acted without input from Holder.” One can speculate that some group of career attorneys, with no love lost for the Bush administration, nevertheless found the prospect of disbarring two of their own for good-faith legal work to be a bridge too far in the partisan wars. And it may be that as the wheels come off the ideology-driven Holder-Obama approach to terrorism (e.g., widespread criticism of the handling of the Christmas Day bombing, reversal of the decision to try KSM in New York), this was one more ill-conceived crusade that the Obami did not need.

Finally, for those who like a bit of Washington intrigue, consider that the White House counsel was until recently Greg Craig, who in his pre-Obama days as an adviser to Sen. Kennedy found the Nicaraguan Sandinistas to be deserving of our support, later helped return Elian Gonzales to the clutches of Fidel Castro, and advised in some capacity Pedro Miguel González, the Panamanian terrorist the U.S. government believed to have murdered two American soldiers. (Yes, that’s a story in and of itself, one that the mainstream media found no interest in reporting.) Craig, often cited as an enthusiastic backer of the “Not Bush” anti-terror policies, is now gone, a victim of the failed attempt to close Guantanamo. Perhaps his departure has removed a powerful advocate for this sort of unseemly mischief. If so, good riddance.

Regardless of the reason, the news that Yoo and Bybee will not be hounded from their profession is positive and long overdue. (The potential loss of their professional licenses has been hanging over them for well over a year.) The notion that lawyers providing detailed legal analysis and a comprehensive review of existing law could later be strung up by state bar associations is nothing short of chilling. As I previously wrote, Ronald Rotunda, a professor of law at Chapman Law School and a specialist in ethics who was consulted by the Justice Department on the OPR’s investigation, found the entire effort to prosecute lawyers for their opinions baffling:

“I can’t imagine you would discipline someone who goes through everything methodically.” He explains, “If you don’t like the particular policies, then change the policies.” He draws an analogy with the attacks on free speech during the Vietnam war and McCarthy eras in which lawyers with particular views were demonized and threatened with loss of their professional licenses.

Well, perhaps some sanity has been restored to the Justice Department. If so, we can finally turn our attention from waging war against the prior administration to determining how to uproot the failed policies of this one. Then on to steering an approach to combating terrorism that is both effective and enjoys the support of the public.

In a remarkable and entirely welcome reversal, the Eric Holder Justice Department has retreated in its effort to pursue ethics charges against Bush administration lawyers who authored memos on enhanced interrogation. Newsweek reports on the internal probe by the Justice Department’s Office of Professional Responsibility (OPR):

While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources.

A draft report prepared in the waning days of the Bush administration by OPR was roundly criticized by departing Attorney General Michael Mukasey and his deputy Mark Filip. As I reported previously:

One former Justice official with knowledge of the matter says, “It is safe to say they had a number of concerns about the draft report both as to the timing and the substance” of the work by OPR. There is, this official reports, “institutional unease by senior career people” at Justice that good faith legal work may place attorneys in peril. “The department won’t be able to attract the best and the brightest. You really want lawyers who will give candid legal advice.”

But the question remains why, and why now, the department has come to its senses. Newsweek pointedly observes: “A Justice official declined to explain why David Margolis softened the original finding, but noted that he is a highly respected career lawyer who acted without input from Holder.” One can speculate that some group of career attorneys, with no love lost for the Bush administration, nevertheless found the prospect of disbarring two of their own for good-faith legal work to be a bridge too far in the partisan wars. And it may be that as the wheels come off the ideology-driven Holder-Obama approach to terrorism (e.g., widespread criticism of the handling of the Christmas Day bombing, reversal of the decision to try KSM in New York), this was one more ill-conceived crusade that the Obami did not need.

Finally, for those who like a bit of Washington intrigue, consider that the White House counsel was until recently Greg Craig, who in his pre-Obama days as an adviser to Sen. Kennedy found the Nicaraguan Sandinistas to be deserving of our support, later helped return Elian Gonzales to the clutches of Fidel Castro, and advised in some capacity Pedro Miguel González, the Panamanian terrorist the U.S. government believed to have murdered two American soldiers. (Yes, that’s a story in and of itself, one that the mainstream media found no interest in reporting.) Craig, often cited as an enthusiastic backer of the “Not Bush” anti-terror policies, is now gone, a victim of the failed attempt to close Guantanamo. Perhaps his departure has removed a powerful advocate for this sort of unseemly mischief. If so, good riddance.

Regardless of the reason, the news that Yoo and Bybee will not be hounded from their profession is positive and long overdue. (The potential loss of their professional licenses has been hanging over them for well over a year.) The notion that lawyers providing detailed legal analysis and a comprehensive review of existing law could later be strung up by state bar associations is nothing short of chilling. As I previously wrote, Ronald Rotunda, a professor of law at Chapman Law School and a specialist in ethics who was consulted by the Justice Department on the OPR’s investigation, found the entire effort to prosecute lawyers for their opinions baffling:

“I can’t imagine you would discipline someone who goes through everything methodically.” He explains, “If you don’t like the particular policies, then change the policies.” He draws an analogy with the attacks on free speech during the Vietnam war and McCarthy eras in which lawyers with particular views were demonized and threatened with loss of their professional licenses.

Well, perhaps some sanity has been restored to the Justice Department. If so, we can finally turn our attention from waging war against the prior administration to determining how to uproot the failed policies of this one. Then on to steering an approach to combating terrorism that is both effective and enjoys the support of the public.

Read Less




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