Holder DOJ Witchhunt Slapped Down

and deservedly so ...

http://corner.nationalreview.com/post/?q=YjllMDAyOGE1MDhhZDk0Y2QwNDc2OTU0NGMzMWFlMGI=


Attorney General Mukasey and Deputy Attorney General Filip Shredded OPR's Misconduct Allegations Against Bush Lawyers [Andy McCarthy]
The Justice Department last night released the Office of Professional Responsibility’s report clearing Bush-era attorneys of professional misconduct. The baseless claims of ethical lapses stemmed mostly from 2002 legal opinions issued by DOJ’s Office of Legal Counsel in connection with the CIA’s interrogation program.

For whatever reason, when the Justice Department released its report to Congress, inevitably ensuring that it would be made public, it did not release a crucial letter to OPR written by the Bush Justice Department’s two highest officials, Attorney General Michael Mukasey and Deputy Attorney General Mark Filip. That letter, dated January 19, 2009 (the last full day of the Bush administration), shredded OPR’s initial Draft Report and the process by which OPR's preliminary conclusions about ethical misconduct were reached.

I have obtained a copy of that letter and I am releasing it here on NRO this morning. It can be found here.

Messrs. Mukasey and Filip are both distinguished former federal judges, and their 14-page analysis of OPR’s shoddy work is withering. The letter ought to be read in full, but here are some highlights:

After taking nearly five years to complete a nearly 200-page, single-space report, OPR withheld it’s work from the Attorney General and Deputy Attorney General until December 23, 2008 – right before the Christmas and New Year’s holidays, and four weeks before the conclusion of the Bush administration, so that DOJ was then busy with transition to the new Obama administration. OPR did this with an eye toward releasing the report on January 12, 2009. This schedule would have ensured no meaningful review by top DOJ officials, and no meaningful opportunity for comment on the report from counsel for the Bush OLC attorneys whose work was criticized (even though OPR had made a commitment that there would be an opportunity for review and comment).

The original OPR draft report proceeded, as Mukasey and Filip put it, “seemingly without any consideration of the context in which the OLC opinions were prepared”—namely, in the aftermath of a catastrophic attack on the United States in which almost 3000 Americans were killed, and under circumstances where the OLC lawyers were under “virtually incomparable and extended pressure” to provide guidance to the intelligence community.

The OPR draft report, after taking nearly five years to review the law, derided the Bush OLC lawyers for failing to cite Khanuja v. I.N.S., a Ninth Circuit case interpreting the UN Convention Against Torture. However, Khanuja is an unpublished opinion, and under Ninth Circuit rules (which are well known to Justice Department lawyers), the citation of unpublished opinions is prohibited and lawyers who disregard this rule may be sanctioned for ethical misconduct.

Despite having had nearly five years to do its own legal analysis, OPR relied heavily on the work of academic critics of the Bush administration without (a) any explanation of why their work was somehow authoritative, and (b) balance in the form of views of other academics and commentators who had defended the professionalism of the OLC lawyers. For example, in critiquing the work of Bush OLC lawyers John Yoo (a legal scholar and tenured professor of law at the prestigious University of California Boalt School of Law) and Jay Bybee (an accomplished lawyer and now a federal appellate judge), OPR relied extensively on Professor David Luban. As Mukasey and Filip noted, though obviously a thoughtful and prolific scholar, Prof. Luban is not an attorney, has never practiced law (he is a trained philosopher), and is a vigorous critic of the Bush administration and the War on Terror generally. There was no mention of this background and Prof. Luban's patent potential bias in OPR’s Ddraft Rreport.

The OPR draft report claimed it was “unreasonable” for the Bush OLC lawyers, in construing the concept of “severe pain” for purposes of the federal torture statute, to rely on Congress’s use of the term “severe pain” in a health care statute. But there was no direct precedent for the meaning of “severe pain” in the torture statute, and, as Mukasey and Filip observed, “it is a common practice for lawyers to look to other sources for guidance in interpretation when there is no direct precedent” – and that is exactly what the OLC lawyers explained that they were doing, in addition to turning to dictionary definitions, another common practice.

The OPR draft report, on the basis of no evidence, questions not only the methods but the motives of the Bush OLC lawyers, claiming that they attempted to reverse a refusal by DOJ’s Criminal Division to decline prosecution for future violations of the torture statute. As Mukasey and Filip recount, “Notably, the Draft Report presents no evidence that the OLC attorneys even opposed the Department’s decision to decline prosecution; to the contrary, OLC was tasked with drafting the written notice refusing to decline prosecution of future statutory violations.”

OPR privately acknowledged to Mukasey and Filip that there was no direct evidence that the OLC opinions reflected anything other than the OLC lawyers’ “best legal judgment at the time.” Yet, astoundingly, that fact was not mentioned a single time in OPR’s draft report – a report that was centrally about whether the OLC lawyers had provided their best legal judgment.

It was the OPR Draft Report that recommended the re-examination by DOJ of various declinations to prosecute incidents of detainee abuse. Those declinations were reviewed “independently by two sets of prosecutors, first in the Counterterrorism Section … and later in the U.S. Attorney’s Office for the Eastern District of Virginia”; they were arrived at based on case-related considerations that had nothing to do with the information examined in OPR’s Draft Report; and, indeed, the review by the career prosecutors from the Eastern District of Virginia occurred in 2005 – long after the 2002 OLC memos had been withdrawn by DOJ. (ACM note: Attorney General Holder ordered a review of these declinations anyway, just as OPR recommended.)

OPR’s draft report recommended that later OLC memos be reviewed, alleging that there was “pressure … to complete legal opinions which would allow the CIA interrogation program to go forward.” As Mukasey and Filip recount, this allegation “misinterprets the only evidence it cites.” In fact, Stephen Bradbury, the well-regarded OLC chief behind those memos, stated repeatedly – both in sworn testimony and in interviews with OPR – that “he was never pressured to reach any particular result in his evaluation of the CIA’s interrogation program.”

The OPR report urged that the Bradbury memos be reviewed by the Justice Department despite the fact that they had already been personally reviewed by Attorney General Mukasey, pursuant to a request by Congress.

The OPR faulted OLC for failing “to consider and address the moral and policy considerations triggered by the issues.” Yet the precise job of OLC is to provide strict legal advice, shorn of policy and other considerations. Moreover, as Mukasey and Filip concluded, OPR’s suggestion would run afoul of the D.C. Bar’s ethical rules, which counsel that a lawyer is to provide technical legal advice when asked for purely technical legal advice – only where a client is “inexperienced in legal matters” should guidance go beyond “strictly legal considerations.” Nothing in the profession of lawyering makes one expert in matters of morality and policy, and the point is to avoid a situation in which the lawyer’s personal predilections are masqueraded as legal requirements.

I recommend that the letter be read in its entirety.


Friday Night Hack Attack [Bill Burck and Dana Perino]

On February 19, Attorney General Eric Holder took part in the time-honored Washington tradition of dumping undesired news on Friday afternoons or evenings. After weeks of leaks, the Justice Department officially exonerated Bush-era lawyers John Yoo and Jay Bybee, the authors of the original legal opinions on the lawfulness of the CIA interrogation program, which are known pejoratively as the “torture memos” to critics.

This is bad news for Holder and certain other Obama appointees at Justice — it undermines the story they’ve been telling for years that the lawyers who found the CIA program lawful were sadistic criminals committed to torturing poor souls such as Khalid Sheik Muhammad — but it is a vindication of an important principle that, prior to the Holder reign, had been adhered to across administrations: honestly held legal and policy opinions are not cause for prosecution or professional discipline.

For years now this principle has been under sustained attack by hard-core left-wing congressional partisans such as Rep. John Conyers and Sen. Patrick Leahy. It’s not much of a stretch to imagine some of the more wild-eyed among them searching for ways to revoke the law licenses of conservative Supreme Court justices. Fortunately, this country is not Venezuela — at least not yet; we should not rest easy.

This was a very narrow escape that came down to the brave decision of a long-time career official at Justice named David Margolis. Margolis is a widely respected 40-year veteran who has been tasked over the years with handling many of the more sensitive internal inquiries at the Justice Department. One of his responsibilities — which he has performed honorably for a number of different attorneys general in Democratic and Republican administrations — has been to oversee inquiries conducted by lawyers in the little-known Office of Professional Responsibility, or OPR. OPR is the office that recommended Yoo and Bybee be subject to disciplinary proceedings. Margolis rejected OPR’s recommendation and most of its analysis.

OPR is the equivalent of internal affairs at a police department, conducting inquiries of alleged misconduct by Justice Department lawyers and other staff and making disciplinary recommendations. OPR has an important role to play to ensure that misconduct is discovered and punished. But OPR’s investigation of the legal advice provided by Yoo and Bybee was, by its own admission, extremely unusual.

Keep reading this post . .



Sweeping Up the Friday Dump [Jonah Goldberg]

Do read Bill and Dana's post below as well as this morning's outstanding editorial over at theWall Street Journal. Here's the opening of the (long) Journal editorial:

So after five years of investigation, partisan accusations and unethical media leaks, the Justice Department's senior ethicist has concluded that Bush Administration lawyers John Yoo and Jay Bybee committed no professional misconduct. The issue now is whether the protégés of Attorney General Eric Holder who led this exercise at Justice's Office of Professional Responsibility (OPR) should themselves be in the dock.

That's our reading of the analysis by Associate Deputy Attorney General David Margolis, a career official who reviewed both the Bush-era legal memos on interrogating terror suspects and their review by the lawyers at OPR. Remarkably, his report is far more scathing about OPR than it is about Messrs. Yoo and Bybee, who he says made legal errors but did so in good faith, out of honest legal analysis, and in the ethical service of their clients in the executive branch at a time of war.

Mr. Margolis's review overrules both a draft OPR report whose contents were leaked to the media last year and a final OPR report that was released along with the Margolis review late Friday. Those OPR reports recommended disciplinary action and potential disbarment for Messrs. Bybee and Yoo for their advice while working in the Office of Legal Counsel in the frantic months after September 11. The leaks were themselves an unethical attempt to smear the reputations of the lawyers while they were under a gag order and unable to reply.