Commentary Magazine


Topic: U.S. Department of Justice

Is HSBC Doing Damage Control at State Department After Pro-Iran Ad?

It looks like HSBC may be doing a bit of damage control in Foggy Bottom after its pro-Iran ad campaign sparked criticism from the media and foreign-policy experts. The bank’s controversial advertisement was discussed at a private meeting between HSBC CEO Niall Booker and Jose Fernandez, assistant secretary for economic energy and business affairs, at the State Department on Monday, a source familiar with the conversation told me.

HSBC’s spokesperson Robert Sherman declined to comment directly on whether the recent ad flap played a part in the discussion, saying only that “We have ongoing meetings with officials, sometimes at our request. This meeting was scheduled before the Iran ad articles.”

The ad in question claimed that “Only 4% of American films are made by women. In Iran it’s 25%,” and noted that the bank finds “potential in unexpected places.” Some interpreted this to mean that HSBC was pursuing investment opportunities in Iran, but the bank denied that was the ad’s intent.

The Washington Post’s Jennifer Rubin reported on Dec. 26 that the bank has recently “drawn the attention of various regulators” and is currently “being probed by the U.S. Department of Justice and the U.S. Attorney’s Office.” Regulators at the Federal Reserve Bank of Chicago also reportedly “found that the bank’s compliance program was ineffective and created ‘significant potential’ for money laundering and terrorist financing. This opened HSBC to the possibility that it was conducting transactions on behalf of sanctioned entities.”

While HSBC has already pulled the offending advertisement, it makes sense that it would want to smooth things over with the State Department. The department has been a vocal critic of the Iranian regime’s oppressive treatment of women and disregard for human rights, and it’s easy to see how the ad could have ruffled some feathers there.

It looks like HSBC may be doing a bit of damage control in Foggy Bottom after its pro-Iran ad campaign sparked criticism from the media and foreign-policy experts. The bank’s controversial advertisement was discussed at a private meeting between HSBC CEO Niall Booker and Jose Fernandez, assistant secretary for economic energy and business affairs, at the State Department on Monday, a source familiar with the conversation told me.

HSBC’s spokesperson Robert Sherman declined to comment directly on whether the recent ad flap played a part in the discussion, saying only that “We have ongoing meetings with officials, sometimes at our request. This meeting was scheduled before the Iran ad articles.”

The ad in question claimed that “Only 4% of American films are made by women. In Iran it’s 25%,” and noted that the bank finds “potential in unexpected places.” Some interpreted this to mean that HSBC was pursuing investment opportunities in Iran, but the bank denied that was the ad’s intent.

The Washington Post’s Jennifer Rubin reported on Dec. 26 that the bank has recently “drawn the attention of various regulators” and is currently “being probed by the U.S. Department of Justice and the U.S. Attorney’s Office.” Regulators at the Federal Reserve Bank of Chicago also reportedly “found that the bank’s compliance program was ineffective and created ‘significant potential’ for money laundering and terrorist financing. This opened HSBC to the possibility that it was conducting transactions on behalf of sanctioned entities.”

While HSBC has already pulled the offending advertisement, it makes sense that it would want to smooth things over with the State Department. The department has been a vocal critic of the Iranian regime’s oppressive treatment of women and disregard for human rights, and it’s easy to see how the ad could have ruffled some feathers there.

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Is Israel’s Controversial NGO Law Simply a ‘Foreign Agent Registration Act’?

Israel’s deputy minister of foreign affairs, Danny Ayalon, has written a persuasive defense of the Knesset’s new inquiry panel that will investigate whether Israeli NGOs involved in the anti-Israel delegitimization movement are funded by foreign governments. Critics of the initiative have compared it to McCarthyism and say that it unfairly targets groups for their political beliefs. But Ayalon argues that the law is no different from the U.S. Foreign Agent Registration Act:

The Knesset panel of inquiry is simply about transparency. If there are groups who receive funds from foreign nations then the Israeli public deserves the right to know. Some voices have mistakenly declared that this type of inquiry is reminiscent of undemocratic regimes. Perhaps they should take a look at America’s Foreign Agents Registration Act which is, according to the U.S. Department of Justice website, a “disclosure statute that requires persons acting as agents of foreign principals in a political or quasi-political capacity to make periodic public disclosure of their relationship with the foreign principal, as well as activities, receipts and disbursements in support of those activities.”

But while FARA laws apply equally to all individuals and organizations, regardless of political affiliation, it’s unclear whether Israel’s new law will apply only to groups involved in the delegitimization movement. Plus, FARA rules put the onus on foreign agents to register and disclose their own affiliations, while the whole concept of an investigative government panel is much more proactive. The American Jewish Committee, which normally doesn’t comment on Israeli domestic policy, issued a harsh criticism of the new initiative yesterday.

“The selective targeting of groups critical of the IDF runs counter to Israel’s legal and political tradition, and does no service to the one state that is a beacon of democracy in the Middle East,” said AJC executive director David Harris in a press release. “If there is a concern that foreign, and possibly malign, forces are funding civic or political groups in Israel, then let there be a debate on the advisability of requiring full disclosure of the revenues, and their sources, of all such groups across the political spectrum.”

I definitely applaud the idea of a FARA law for Israel, but I agree with the AJC that the policy shouldn’t be based on the politics of the organization. News reports have indicated that the law singles out left-wing delegitimization groups; but from Ayalon’s defense, I get the sense that it applies to all NGOs. Of course, the Knesset obviously doesn’t have time to investigate every NGO in Israel, and I’m sure politics will play a sizable role in which organizations ultimately get scrutinized.

Israel’s deputy minister of foreign affairs, Danny Ayalon, has written a persuasive defense of the Knesset’s new inquiry panel that will investigate whether Israeli NGOs involved in the anti-Israel delegitimization movement are funded by foreign governments. Critics of the initiative have compared it to McCarthyism and say that it unfairly targets groups for their political beliefs. But Ayalon argues that the law is no different from the U.S. Foreign Agent Registration Act:

The Knesset panel of inquiry is simply about transparency. If there are groups who receive funds from foreign nations then the Israeli public deserves the right to know. Some voices have mistakenly declared that this type of inquiry is reminiscent of undemocratic regimes. Perhaps they should take a look at America’s Foreign Agents Registration Act which is, according to the U.S. Department of Justice website, a “disclosure statute that requires persons acting as agents of foreign principals in a political or quasi-political capacity to make periodic public disclosure of their relationship with the foreign principal, as well as activities, receipts and disbursements in support of those activities.”

But while FARA laws apply equally to all individuals and organizations, regardless of political affiliation, it’s unclear whether Israel’s new law will apply only to groups involved in the delegitimization movement. Plus, FARA rules put the onus on foreign agents to register and disclose their own affiliations, while the whole concept of an investigative government panel is much more proactive. The American Jewish Committee, which normally doesn’t comment on Israeli domestic policy, issued a harsh criticism of the new initiative yesterday.

“The selective targeting of groups critical of the IDF runs counter to Israel’s legal and political tradition, and does no service to the one state that is a beacon of democracy in the Middle East,” said AJC executive director David Harris in a press release. “If there is a concern that foreign, and possibly malign, forces are funding civic or political groups in Israel, then let there be a debate on the advisability of requiring full disclosure of the revenues, and their sources, of all such groups across the political spectrum.”

I definitely applaud the idea of a FARA law for Israel, but I agree with the AJC that the policy shouldn’t be based on the politics of the organization. News reports have indicated that the law singles out left-wing delegitimization groups; but from Ayalon’s defense, I get the sense that it applies to all NGOs. Of course, the Knesset obviously doesn’t have time to investigate every NGO in Israel, and I’m sure politics will play a sizable role in which organizations ultimately get scrutinized.

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FBI Hate Crime Stats Again Debunk Myth of Anti-Muslim Backlash

One of the standard tropes of mainstream-media discourse in the post-9/11 era is that American Muslims have been subjected to a backlash in which they have been subjected to discrimination and hate crimes. Though there was little or no actual statistical evidence of bias attacks or any sort of official discrimination, this notion that America is a hostile place for Muslims helped change the nature of the debate over the proposed Ground Zero Islamic Center and mosque that dominated the airwaves this past summer. Publications such as Time magazine asked, “Does America Have a Muslim Problem?” in August despite the fact that they could provide nothing but anecdotal evidence for their assumption that the answer to their query was an undoubted “yes.”

Though the success of this claim of Muslim victimhood was largely the result of successful propagandizing by groups such as the Council on American Islamic Relations (CAIR), which is dedicated to promoting the idea that the United States is a foe of Islam, it has become a commonplace assumption that a post-9/11 anti-Muslim backlash was real and that anti-Muslim attacks in this country are a widespread and persistent phenomena. It is this assumption that was the foundation for the belief that a Ground Zero mosque dedicated to reminding Americans not to think ill of Muslims was not only appropriate but also necessary.

As I wrote in the October issue of COMMENTARY, FBI hate-crime statistics for the years 2000 to 2008 showed that not only were anti-Muslim bias crimes rare but that they were also far less numerous throughout this supposed period of a backlash than anti-Semitic bias crimes.

The release of the latest FBI report on hate crimes this week adds more weight to the doubts raised about the mythical backlash against Muslims. The new statistics published on the U.S. Department of Justice website show that there were only 107 reported incidents of anti-Islamic hate crimes in the country during 2009. While each incident (not only actual crimes are reported, as the total published by the FBI includes all those reported or alleged without respect to whether or not the crime was proved to have occurred) is deplorable, this represents only 8 percent of all religious-based bias crimes and less than 2 percent of hate crimes tabulated last year.

Even more to the point, the number of anti-Jewish hate crimes dwarfed again the number of anti-Islamic attacks, as they have every year since such statistics were first kept: 931 anti-Semitic incidents, compared with 107 anti-Islamic incidents, a ratio of better than 8 to 1.  The same was true in 2008, when the figures were 1,013 anti-Jewish incidents to 105 anti-Muslim incidents. Indeed, even in 2001, the worst year for anti-Muslim hate crimes, there were still more than twice as many anti-Jewish incidents as those with anti-Islamic motivations. Throughout this period, the vast majority of hate crimes motivated by religion have been directed against Jews, not Muslims.

Despite the constant drumbeat of incitement from those extremists purporting to represent the interests of American Muslims, anti-Islamic hate crimes remain rare occurrences. The idea that anti-Muslim bigotry is a dominant theme in American society or that violent haters have disproportionately victimized believers in Islam is simply without foundation. And far from giving sanction to such bigotry, the hallmark of American discourse since 9/11 has been a conscious effort to disassociate Islam from the war being waged against the West by Islamist terrorists. The new statistics provide fresh proof that the claim of an anti-Muslim backlash is unfounded.

One of the standard tropes of mainstream-media discourse in the post-9/11 era is that American Muslims have been subjected to a backlash in which they have been subjected to discrimination and hate crimes. Though there was little or no actual statistical evidence of bias attacks or any sort of official discrimination, this notion that America is a hostile place for Muslims helped change the nature of the debate over the proposed Ground Zero Islamic Center and mosque that dominated the airwaves this past summer. Publications such as Time magazine asked, “Does America Have a Muslim Problem?” in August despite the fact that they could provide nothing but anecdotal evidence for their assumption that the answer to their query was an undoubted “yes.”

Though the success of this claim of Muslim victimhood was largely the result of successful propagandizing by groups such as the Council on American Islamic Relations (CAIR), which is dedicated to promoting the idea that the United States is a foe of Islam, it has become a commonplace assumption that a post-9/11 anti-Muslim backlash was real and that anti-Muslim attacks in this country are a widespread and persistent phenomena. It is this assumption that was the foundation for the belief that a Ground Zero mosque dedicated to reminding Americans not to think ill of Muslims was not only appropriate but also necessary.

As I wrote in the October issue of COMMENTARY, FBI hate-crime statistics for the years 2000 to 2008 showed that not only were anti-Muslim bias crimes rare but that they were also far less numerous throughout this supposed period of a backlash than anti-Semitic bias crimes.

The release of the latest FBI report on hate crimes this week adds more weight to the doubts raised about the mythical backlash against Muslims. The new statistics published on the U.S. Department of Justice website show that there were only 107 reported incidents of anti-Islamic hate crimes in the country during 2009. While each incident (not only actual crimes are reported, as the total published by the FBI includes all those reported or alleged without respect to whether or not the crime was proved to have occurred) is deplorable, this represents only 8 percent of all religious-based bias crimes and less than 2 percent of hate crimes tabulated last year.

Even more to the point, the number of anti-Jewish hate crimes dwarfed again the number of anti-Islamic attacks, as they have every year since such statistics were first kept: 931 anti-Semitic incidents, compared with 107 anti-Islamic incidents, a ratio of better than 8 to 1.  The same was true in 2008, when the figures were 1,013 anti-Jewish incidents to 105 anti-Muslim incidents. Indeed, even in 2001, the worst year for anti-Muslim hate crimes, there were still more than twice as many anti-Jewish incidents as those with anti-Islamic motivations. Throughout this period, the vast majority of hate crimes motivated by religion have been directed against Jews, not Muslims.

Despite the constant drumbeat of incitement from those extremists purporting to represent the interests of American Muslims, anti-Islamic hate crimes remain rare occurrences. The idea that anti-Muslim bigotry is a dominant theme in American society or that violent haters have disproportionately victimized believers in Islam is simply without foundation. And far from giving sanction to such bigotry, the hallmark of American discourse since 9/11 has been a conscious effort to disassociate Islam from the war being waged against the West by Islamist terrorists. The new statistics provide fresh proof that the claim of an anti-Muslim backlash is unfounded.

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Obama Justice Department Rocked

The former head of the Justice Department’s New Black Panther trial team, Chris Coates, testified Friday before the U.S. Commission on Civil Rights. See here and here and here (subscription required). Before Coates broke his silence, the commission’s critics, a minority of the commissioners, and the mainstream media insisted that the dismissal of a slam-dunk voter-intimidation case had no significance beyond the single incident on Election Day 2008. However, Coates’s account of the administration’s hostility to race-neutral enforcement of voting laws and refusal to enforce Section 8 of the Voting Rights Act (requiring that states clean up their voting rolls to prevent voter fraud) blew that assertion to smithereens.

I was in the hearing room on Friday. Nearly as riveting as Coates’s testimony was the frantic performance of the administration’s chief lackey, Commissioner Michael Yaki. He asked Coates about the civil rights division’s memo-writing procedures, Bush-era cases, and Coates’s friendship with a former department attorney but never asked any questions about the specific allegations that Obama appointees opposed equal enforcement of the voting laws. An audience member wisecracked, “When all else fails, blame George Bush.” Read More

The former head of the Justice Department’s New Black Panther trial team, Chris Coates, testified Friday before the U.S. Commission on Civil Rights. See here and here and here (subscription required). Before Coates broke his silence, the commission’s critics, a minority of the commissioners, and the mainstream media insisted that the dismissal of a slam-dunk voter-intimidation case had no significance beyond the single incident on Election Day 2008. However, Coates’s account of the administration’s hostility to race-neutral enforcement of voting laws and refusal to enforce Section 8 of the Voting Rights Act (requiring that states clean up their voting rolls to prevent voter fraud) blew that assertion to smithereens.

I was in the hearing room on Friday. Nearly as riveting as Coates’s testimony was the frantic performance of the administration’s chief lackey, Commissioner Michael Yaki. He asked Coates about the civil rights division’s memo-writing procedures, Bush-era cases, and Coates’s friendship with a former department attorney but never asked any questions about the specific allegations that Obama appointees opposed equal enforcement of the voting laws. An audience member wisecracked, “When all else fails, blame George Bush.”

Try as Democrats might to ignore the blockbuster evidence, Coates’s testimony was a game changer. Granted, the testimony contained information already revealed in conservative outlets and by former DOJ attorney J. Christian Adams. But Coates confirmed these facts and added a wealth of new details. An African American attorney and his mother (who also works for DOJ) were harassed for working on a voting case brought against an African American defendant. Obama’s deputy assistant general for civil rights, Julie Fernandez, repeatedly told attorneys not to enforce Section 8 or bring cases against minority defendants. Coates’s supervisor, who directly ordered the case’s dismissal, told him to stop asking applicants if they could enforce laws in a race-neutral fashion. Coates briefed civil rights chief Thomas Perez on the hostility toward race-neutral enforcement of voting laws — before Perez feigned ignorance of such sentiments in sworn testimony. In sum, Coates’s appearance was the scandal’s tipping point.

Conservative outlets have reported on the case for over a year; mainstream reporters have averted their eyes. After Coates’s performance, the Washington Post’s page-one story proclaimed that the case is “ratcheting up.” Politico had pooh-poohed the story; it now acknowledges that conservatives had it correct all along. (“Coates’ highly-charged testimony before the Civil Rights Commission echoed [conservatives’] allegations, as well as the testimony of J. Christian Adams.”) The testimony was so stunning that the New York Times might have to cover it.

Meanwhile, the DOJ’s spokesman bristled that Coates wasn’t “authorized” to testify and wasn’t an “appropriate” witness. In a transparent coordination with Yaki, DOJ’s spokesman blamed the Bush administration for politicizing the department. But it will be impossible to shrug off or smear Coates. As the Post conceded, Coates’s testimony will “carry greater weight because he worked decades ago as an attorney for the American Civil Liberties Union, has won awards from civil rights groups and lacks the partisan GOP resume of the department’s harshest opponents.”

Moreover, Coates testimony was all the more compelling because he was so circumspect, refusing to testify about internal discussions that the department considers privileged. (He readily agreed to provide more details if the DOJ waived its privilege claim.) He declined to draw inferences unsupported by his own observations. Asked whether Obama appointees’ directive not to enforce Section 8’s anti-fraud provisions was racially motivated, he answered with a litigator’s precision: it might have not been the intent, but the result was to allow bloated voting rolls in heavily minority districts that were Democratic strongholds.

No wonder the administration tried to muzzle Coates. Nevertheless, the department’s stonewalling has failed, and those parroting the administration’s line (“much ado about nothing”) look foolish. Inevitably, more Justice Department witnesses and documents will surface. (Judicial Watch has sued the DOJ, demanding documents evidencing the involvement of the department’s No. 3 man.)

Moreover, after November, Republicans almost certainly will assume chairmanships of key congressional committees. (Staff members from the offices of Reps. Lamar Smith and Frank Wolf, who have doggedly pursued the case, listened attentively in the front row on Friday.) A spokesman for Smith released this statement:

A founding principle of this nation is equality under the law. That means it is unacceptable for the Justice Department to determine whether to enforce a law based upon the race of a defendant or victim. And yet, according to testimony by the former chief voting rights attorney for the Department, that is precisely what the Justice Department is doing. … The Judiciary Committee should immediately open an investigation into allegations of improper practices within the Civil Rights Division and Justice Department officials should be subpoenaed to testify before Congress. There is no excuse for racial discrimination anywhere, but within the halls of the U.S. Department of Justice, it is the height of hypocrisy.

If Obama appointees refuse to testify voluntarily, the new chairmen will issue subpoenas.

It will be interesting to hear Obama officials explain why they failed to investigate accusations of wrongdoing and instead insisted that voting-rights laws be enforced only on behalf of minorities. It will be must-see TV when Perez is grilled on his inaccurate testimony claiming ignorance of hostility to the colorblind enforcement of voting laws. Will attorneys be referred to their state bar for professional misconduct?

This has become another headache for the Obama administration, especially for Eric Holder. Maybe he will want to “spend more time with his family” before Republican chairmen grab their gavels.

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ObamaCare Lawsuit Clears First Hurdle

There was a significant development in the ObamaCare lawsuit today. The attorney general of Virginia Ken Cuccinelli put out the following statement:

A federal judge ruled today that Virginia does indeed have standing to bring its lawsuit seeking to invalidate the federal Patient Protection and Affordable Care Act.  The judge also ruled that Virginia had stated a legally sufficient claim in its complaint.  In doing so, federal district court judge Henry E. Hudson denied the federal government’s motion to dismiss the commonwealth’s suit. …

The U.S. Department of Justice argued that Virginia lacked the standing to bring a suit, that the suit is premature, and that the federal government had the power under the U.S. Constitution to mandate that citizens must be covered by government-approved health insurance or pay a monetary penalty.

In denying the motion to dismiss, Judge Hudson found that Virginia had alleged a legally recognized injury to its sovereignty, given the government’s assertion that the federal law invalidates a Virginia law, the Health Care Freedom Act. …

The Court recognized that the federal health care law and its associated penalty were literally unprecedented. Specifically, the Court wrote that “[n]o reported case from any federal appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person’s decision not to purchase a product, notwithstanding its effect on interstate commerce.”

Well, well. It seems that the conservative scholars were right, and those arguing a legal challenge was frivolous were wrong. Moreover, it is not simply a procedural ruling on standing or “ripeness” (that is, whether there is an actual case at present). Todd Gaziano of the Heritage Foundation explains:

On the merits, we are surprised the judge took as much space to conclude that Virginia stated a valid cause of action, namely, that Congress had exceeded its constitutional authority with the individual mandate.  At this stage in the litigation and on the particular motion that was filed (a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for the legal wonks), the judge need not and could not rule on who will win or even if one side is more likely to win.  The only question is whether Virginia stated a legal cause of action (or legal theory) that is cognizable in law.  Virginia certainly has at least a valid substantive theory to challenge the law, because someone with standing is always able to challenge the constitutionality of a statute on the ground that Congress has no constitutional authority to enact it, QED. … Judge Hudson’s discussion of the constitutional issues is somewhat instructive.  It shows he is not hostile or dismissive of Virginia’s claims, which is surely good for liberty.

Obama’s “historic” accomplishment is both legally and politically vulnerable. (Republicans aren’t waiting for the courts to rule it unconstitutional and are thinking up ways to defund ObamaCare.) It seems there really are limits to the left’s statist ambitions.

There was a significant development in the ObamaCare lawsuit today. The attorney general of Virginia Ken Cuccinelli put out the following statement:

A federal judge ruled today that Virginia does indeed have standing to bring its lawsuit seeking to invalidate the federal Patient Protection and Affordable Care Act.  The judge also ruled that Virginia had stated a legally sufficient claim in its complaint.  In doing so, federal district court judge Henry E. Hudson denied the federal government’s motion to dismiss the commonwealth’s suit. …

The U.S. Department of Justice argued that Virginia lacked the standing to bring a suit, that the suit is premature, and that the federal government had the power under the U.S. Constitution to mandate that citizens must be covered by government-approved health insurance or pay a monetary penalty.

In denying the motion to dismiss, Judge Hudson found that Virginia had alleged a legally recognized injury to its sovereignty, given the government’s assertion that the federal law invalidates a Virginia law, the Health Care Freedom Act. …

The Court recognized that the federal health care law and its associated penalty were literally unprecedented. Specifically, the Court wrote that “[n]o reported case from any federal appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person’s decision not to purchase a product, notwithstanding its effect on interstate commerce.”

Well, well. It seems that the conservative scholars were right, and those arguing a legal challenge was frivolous were wrong. Moreover, it is not simply a procedural ruling on standing or “ripeness” (that is, whether there is an actual case at present). Todd Gaziano of the Heritage Foundation explains:

On the merits, we are surprised the judge took as much space to conclude that Virginia stated a valid cause of action, namely, that Congress had exceeded its constitutional authority with the individual mandate.  At this stage in the litigation and on the particular motion that was filed (a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for the legal wonks), the judge need not and could not rule on who will win or even if one side is more likely to win.  The only question is whether Virginia stated a legal cause of action (or legal theory) that is cognizable in law.  Virginia certainly has at least a valid substantive theory to challenge the law, because someone with standing is always able to challenge the constitutionality of a statute on the ground that Congress has no constitutional authority to enact it, QED. … Judge Hudson’s discussion of the constitutional issues is somewhat instructive.  It shows he is not hostile or dismissive of Virginia’s claims, which is surely good for liberty.

Obama’s “historic” accomplishment is both legally and politically vulnerable. (Republicans aren’t waiting for the courts to rule it unconstitutional and are thinking up ways to defund ObamaCare.) It seems there really are limits to the left’s statist ambitions.

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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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