A Tough Job Market for Discredited Bush Lawyers

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As many of you have pointed out, Alberto Gonzales is having a tough time on the job market. I’ll get to that, but first I want to remind you of two other experiences former Bush lawyers have had after they left. First, there’s Harriet Miers, who after a four month job search, ended up where she started, at her old firm of Locke Liddell. She found a job, sure, but it didn’t look like any other big firms were eager to snap up the former White House Counsel.

Then there’s William Haynes. He found something right away–as Corporate Counsel for Chevron. But Chevron doesn’t want you to know they’ve hired Haynes.

When a company recruits a prominent government official, it’s usually eager to put the word out immediately. But Chevron Corp. took more than a month to publicly confirm that it had hired William "Jim" Haynes II, the controversial former general counsel of the Pentagon. Chevron officials say that they didn’t make a big deal of Haynes’ hiring because they didn’t think it was newsworthy.

[snip]

The U.S. Department of Defense announced Haynes’ resignation as general counsel Feb. 25. Two days later Chevron general counsel Charles James sent a memo to the company’s management committee stating that Haynes would be coming aboard as chief corporate counsel. Haynes, who will report to James, will manage the 45-attorney legal department.

Chevron spokesman Kent Robertson says that the company did not make an external announcement about Haynes’ hiring. "I don’t think we thought it was newsworthy," Robertson says. Word of Haynes’ employment by Chevron began appearing in blogs last week, and was reported on Newsweek‘s Web site April 5.

Mr. Robertson, you may not want the general public to know where Haynes ended up, but particularly with the news that Dick Cheney has leant his personal lawyer to Haynes to represent him in matters pertaining to torture, it is certainly newsworthy that Haynes ended up at one of the oil companies Dick and Bush have been making rich of late.

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Yoo and Academic Freedom

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Via Marty Lederman, John Yoo’s Dean, Chris Edley, writes a provocative (though unsurprising) letter regarding John Yoo and academic freedom (h/t scribe). I’ve interspersed some comments and questions between the excerpts below.

Professor Yoo began teaching at Berkeley Law in 1993, received tenure in 1999, and then took a leave of absence to work in the Bush Administration. He returned in 2004, and remains a very successful teacher and prolific (though often controversial) scholar. Because this is a public university, he enjoys not only security of employment and academic freedom, but also First Amendment and Due Process rights.

As I’ve shared with a number of people in comments before, I had a conversation with the Provost of a prestigious private university recently; we spoke about his efforts to ensure the law faculty included good, but conservative, thinkers. I raised Yoo and it was clear that Yoo has become every Dean’s worst hiring nightmare–the young, controversial, but apparently brilliant academic who goes on to do horrible things in government after he has gotten tenure. This whole question would be different, after all, had Yoo not had tenure before he had written these memos.

That said, I’m disappointed that Edley didn’t say more about my biggest worry: Yoo’s teaching. It’s one thing to keep a controversial scholar on faculty because of academic freedom. It’s one thing for that scholar to (as Edley describes elsewhere in his memo) air unpopular views. It’s another thing to have someone who–more than anyone save David Addington on Bush’s legal staff–assaulted the Constitution, doing real damage in the short and potentially long term.

It’s one thing to guard Yoo’s right to write controversial academic articles. It’s yet another to have him teach future lawyers Constitutional Law.

So I’m curious how Edley measures Yoo’s teaching when he compliments it here? Is Yoo well-liked by students? Challenging? Rigorous? But just as importantly, is he teaching future lawyers to do as he has done, deliver the goods for the client even if doing so fundamentally conflicts with the Constitution? Is Yoo training the next generation of lawyers who will approach the law and the Constitution itself with a utilitarian attitude? Do students like Yoo because he teaches them to be the best sophists they can be? I don’t know the answer, but I’d sure like to.

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Conyers to Yoo: If You’ll Talk to Esquire, Come Talk to Me

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Conyers isn’t quite as reliable as Henry Waxman in calling a hearing approximately 5 work hours after a big scandal. But is reliable in actually calling the hearing (which means Rove should get his invite in about a day and a half):

I write to invite you to appear before the Committee on the Judiciary at our May 6 hearing scheduled to explore issues regarding the nature and scope of Presidential power in time of war and the current Administration’s approach to these questions under U.S. and international law. Among the subjects likely to be explored at the hearing are United States policies regarding interrogation of persons in the custody of the nation’s intelligence services and armed forces, matters addressed in some detail in opinions that you authored during your service as Deputy Assistant Attorney General in the Office of Legal Counsel. Given your personal knowledge of key historical facts, as well as your academic expertise, your testimony would be invaluable to the Committee on these subjects.

I understand that, in discussions with my staff, you have expressed reluctance to testify voluntarily on such matters. I am hopeful that you have reconsidered that stance, however, given your extensive public comments on these very issues. For example, on April 3, 2008, Esquire magazine published an interview in which you made frank and on-the-record comments regarding the origination, drafting, and scope of OLC interrogation memoranda. Similarly, you provided on-the-record comments on the recently released March 2003 interrogation memorandum to the Washington Post just last week, describing that document as “near boilerplate” and asserting that, in pulling back from the analysis in that memorandum, the Department had “ignored [its] long tradition in defending the President’s authority in wartime.” Overall, you have made such extensive public comments on these and related matters, that it is extremely difficult to understand why you would continue to decline to present your views to the Committee.

To the extent you have raised concerns with my staff that some questions on these matters might call for responses that you believe would be covered by executive privilege or that would implicate executive confidentiality interests, I am confident such concerns can be effectively managed in a setting where you are voluntarily appearing before the Committee. Read more →

“We Don’t Have Time to Respond to Congressional Requests…”

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"…because we’re too busy stonewalling."

That appears to be DOJ’s currently operative excuse explaining why it has yet to respond to Congressional inquiries, some of which are three years old.

Justice Department spokesman Peter Carr said that officials spend "an enormous amount of department time and resources" responding to congressional inquiries, and that they have replied to more than 500 questions from lawmakers this year. "We agree that there is always room for improvement in our effort to be responsive to Congress," Carr said.

At the same time, he said, many requests cover sensitive issues that require cutting through a thicket of pending lawsuits and classified documents, as well as checking with other government agencies and the White House. All those efforts can interfere with prosecutors’ day-to-day work, he added.

"The people in the department who must answer these inquiries are many of the same people who are making key operational decisions in the war on terrorism," Carr said.

[snip]

More than a dozen senior Justice Department officials resigned last year as congressional and internal probes of political interference intensified, adding to the disarray at Washington headquarters. In 2007, officials spent 30,000 hours responding to Congress over the firing of nine U.S. attorneys, the department said.

500 questions!!! In three months, really?!?!? Well golly. I can see how that would be really taxing. That’s an average of five whole questions a day! And how many people does DOJ employ, handling those five questions a day?

And as to the 30,000 hours responding to Congress–how much of that time includes the many brainstorming sessions at which Gonzales’ clique invented new excuses for firing excellent US Attorneys? Had DOJ simply admitted, in January, that the Bush Administration had fired nine US Attorneys for political reasons, DOJ could probably have saved two thirds of those hours.

Aside from all of Peter Carr’s whining about five questions a day, this article does include one more wrinkle in the back-story to the release of the Torture Memo.

Justice Department officials have said that they deserve credit, however, for releasing — last Tuesday — a 2003 opinion approving harsh military interrogation tactics. "Following a request of Senator Levin, DOD [the Defense Department] conducted a declassification review and determined that it would be appropriate to declassify the memorandum at this time," Justice spokesman Brian Roehrkasse said.

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Was the October 23, 2001 OLC Opinion the Basis for the Illegal Wiretap Program?

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By now, you’ve noted the footnote in the Torture Memo referencing a different OLC opinion declaring the 4th Amendment invalid.

[O]ur office recently concluded that the Fourth Amendment had no application to domestic military operations. See Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States at 25 (Oct. 23, 2001).

Scribe and I have been in a bit of a dispute whether or not that October 23, 2001 document was written to justify the illegal wiretapping program. I’m going to try to lay out what we know about it here.

The Case for Believing the 10/23/01 Memo Authorized the Warrantless Wiretap Program

The basis for arguing that the opinion is the rationale for the illegal wiretapping program is simple. First, the timing is right. As the AP notes, the opinion was written just two days before Dick briefed the Gang of Four on the program.

The October memo was written just days before Bush administration officials, including Vice President Dick Cheney, briefed four House and Senate leaders on the NSA’s secret wiretapping program for the first time.

Then there’s the argument that DOJ included the document in a list of materials withheld in response to an ACLU FOIA.

The government itself related the October memo to the TSP program when it included it on a list of documents that were responsive to the ACLU’s request for records from the program. It refused to hand them over.

The document they’re referring to is this Steven Bradbury declaration. In the declaration, Bradbury writes,

OLC 146, which is a 37-page memorandum, dated October 23, 2001, from a Deputy Assistant Attorney General in OLC, and a Special Counsel, OLC, to the Counsel to the President, prepared in response to a request from the White House for OLC’s views concerning the legality of potential responses to terrorist activity OLC 146 is withheld under FOIA Exemption Five.

I’m going to add an update below, showing the other OLC documents Bradbury withheld in this declaration. But note that this one does not specifically address communications (some of the others do).

The last reason it would make sense is the content. By all appearances, the warrantless wiretap program is a clear violation of the Fourth Amendment’s prohibition against unreasonable searches. Thus, it would be logical that the Administration simply invalidated the Fourth Amendment in an OLC opinion to make its illegeal wiretap program legal.

Update: Here’s part of scribe’s logic for arguing the opinion relates to domestic spying (click through to the comment for his complete argument).

The NSA is part of the military .

The title of Yoo’s 10/23/01 memo is, what: “Authority for Use of Military Force to Combat Terrorist Activities Within the United States”

But the proposition for which that memo is cited* in footnote 10 of the memo is:

Indeed, drawing in part on the reasoning of Verdugo-Urquidez, as well as the Supreme Court’s treatment of the destruction of property for the purposes of military necessity, our Office recently concluded that the Fourth Amendment had no application to domestic military operations.

So, what does this mean? Depends on how you define “domestic military operations”, don’t it?

I argue the 10/23/01 memo was the lawyerly justification for:

(a) NSA (military) wiretapping and surveillance operations inside the United States;
(b) domestic military operations of the intel-gathering sort – e.g., CIFA, physical surveillance, black-bag jobs, etc.;
(c) the incarceration of suspected terrists in military brigs, regardless of citizenship status (e.g., Jose Padilla, etc.), their removal from the civilian criminal justice system and their transportation from place to place;
(d) when done by the military, the odd kidnapping, interrogating, whacking of suspected terrists who happened to be within the United States (none of which we know about actually having occurred, but which could have been deemed “legitimate” under the analysis we know about so far).

All of those things are military operations. 

The Case against Believing the 10/23/01 Memo Authorized the Warrantless Wiretap Program

But there are several reasons to believe the opinion has nothing to do with the warrantless wiretap program. Least credibly, there’s Tony Fratto’s insistence that it doesn’t.

White House spokesman Tony Fratto said Wednesday that the Fourth Amendment finding in the October memo was not the legal underpinning for the Terrorist Surveillance Program.

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Embarrassment-Free Show Trials

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The Miami Herald (which is doing good work on the Gitmo show trials) has a description of some of the ways the military is ensuring that the Gitmo show trials don’t lead to the release of any embarrassing information.

A defense lawyer lets slip at the war court convening here that a battlefield commander changed an Afghanistan firefight report in a way that seemed to help a U.S. government murder case. Reporters hear the field commander’s name but are forbidden to report it.

In another case, a judge approves the release of a captive’s interrogation video showing the blurred face of an American agent. But a federal prosecutor on loan to the Pentagon withholds it “out of an abundance of caution.”

Even as the U.S. government edges toward full-blown, war-crimes trials by military commission here, with more hearings next week, all sides are grappling with what information can be made public and what must be kept secret.

Consider: A new courtroom here sequesters Pentagon-approved spectators behind a soundproofed window. If a terror suspect tries to shout about his treatment in U.S. custody, a military censor can mute the audio feed that observers hear.

Under rules that protect interrogation techniques, the Pentagon’s war court won’t let the reputed 9/11 architect, Khalid Sheik Mohammed, say he was waterboarded — something the CIA director, Air Force Gen. Michael V. Hayden, confirmed on Feb. 5.

This will, I suspect, make for a very interesting First Amendment case before the show trials are done (and yes, the ACLU is already working on just that thing). Until those cases work their way through the courts, though, I hope we see more articles like this. They expose the degree to which these are show trials. And the degree to which the military is worried about not just sensitive security information, but also embarrassing information such as the name of the Colonel who allegedly framed Omar Khadr for murder, will be released.

And if there were any doubt about the speciousness of the claim, compare what Gordon England says when he has a pragmatic reason to want to avoid showing Khalid Sheikh Mohammed publicly:

Gordon England, deputy secretary of defense, issued a memo banning the release of Guantánamo detainee photos. The Pentagon is bound by the Geneva Conventions not to humiliate detainees, it said, and “We respect the dignity of all persons.”

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The DNC Email Ruling

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The folks that read and participate at Emptywheel are, in my humble opinion, without any question the best anywhere at deconstructing email issues and cases, and it sure looks to me like some of the people litigating these various matters are picking up on that too. That being the case, who could possibly deny you more fodder?

The Democratic National Committee has been suing the DOJ in DC District Court to obtain some 68 pages of emails relaing to the US Attorney purge. The main reporting to date has been from Politico:

A federal judge has handed the White House a legal victory in a battle with the Democratic National Committee over e-mails related to U.S. attorney firings.

District Judge Ellen Huvelle of the U.S. District Court for the District of Columbia ruled Thursday that the DNC does not have a right under the Freedom of Information Act to 68 pages of e-mails sent between White House and Justice Department officials simply because the White House e-mail traffic was transmitted on a server controlled by the Republican National Committee.
…
In dismissing the DNC lawsuit, Huvelle ruled that it was "based on the false factual premise that White House officials only used their RNC e-mail accounts for political communications."

Additionally, Huvelle decided that just because an RNC server was used to send the messages — 68 pages out of more than 5,000 which have been denied to the DNC — it is not enough to automatically disqualify the Justice Department from claiming a FOIA exemption in refusing to release them.

"It is therefore clear that RNC e-mail accounts were used (rightly or wrongly) both for official and RNC business, and thus the nature of the server is not necessarily informative as to whether the document contained official or political communications," Huvelle wrote in her opinion.

I think there are two issues to be contemplated here. The first is the relative propriety of Huvelle’s decision, and foundation therefor, in the DNC case, and the second is what implications it may have for the greater mass of contentious email issues that are percolating in our midst. Here is the full opinion rendered by Judge Huvelle in Democratic National Committee v. United States Department of Justice, CV 20070-712 (ESH-DDC).

There were originally 5,337 pages of emails responsive to the DNC’s FOIA request, but agreement was reached as to all but 68 pages. All of the Read more →

What’s Wrong With This Picture? Wilkes Sprung From Slammer!

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Almost like it was a Friday evening news or document dump coming out of the Bush White House, news has just hit the wires that convict Brent Wilkes has been released from prison pending appeal.

A federal appeals court has ordered the release from prison of former Poway defense contractor Brent Wilkes while he pursues an appeal of his bribery conviction and 12-year sentence.

The order from the 9th U.S. Circuit Court of Appeals was issued Thursday by judges Thomas G. Nelson and A. Wallace Tashima. Wilkes was convicted in November of bribing former Congressman Randy "Duke" Cunningham and sentenced three months later to 144 months in prison. He immediately appealed the conviction and sought to remain free, but U.S. District Judge Larry Burns refused and ordered him into custody.

In a brief order, Nelson and Tashima said it was unlikely that Wilkes poses a danger to the community or would flee if he were released.

Moreover, the judges said his appeal raised a "substantial question" of law or fact, that "is likely to result in reversal, an order for a new trial, or a sentence that does not include a term of imprisonment."

That was certainly fast; Wilkes was only sentenced about a month ago. Things sure work faster and better if you are a card carrying wingnut member of the Cheney/Bush criminal cabal as opposed to, say for instance, a Democratic governor in the Gooper infested South eh? Now, don’t get me wrong, I made the last statement somewhat tongue in cheek. I don’t think that the timeframe was necessarily accelerated as to Wilkes at all; however, anybody that now doesn’t understand how egregious and malicious the treatment of Don Siegelman was needs to give up the ghost, because any argument to the contrary just doesn’t fly. Are the judges in the 9th Circuit really nine times faster and better than those in the 11th Circuit? Or was something else going on? Go figure….

Listening To You – Mukasey Plays The Emotion Card

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The Bush Administration and their never say die FISA/Immunity push are like cockroaches. You can’t kill em, and they never go away. Well, they’re back again. Attorney General Michael Mukasey has graduated from DC water carrier to full fledged traveling snake oil salesman for the Cheney/Bush Administration and their sordid attempts to cover their own criminal wrongdoing via retroactive immunity for telcos.

Last night, Mukasey spoke at the Commonwealth Club in San Francisco and got so emotional in his desperate plea for retroactive immunity and unlimited snooping that he he welled up with tears in the process.

… Mr. Mukasey grimaced, swallowed hard, and seemed to tear up as he reflected on the weaknesses in America’s anti-terrorism strategy prior to the 2001 attacks. "We got three thousand. … We’ve got three thousand people who went to work that day and didn’t come home to show for that," he said, struggling to maintain his composure.

Isn’t that special? Who from this Administration of criminals, fools and incompetents will cry for the Constitution that has been shredded? Who will lament the privacy of ordinary American citizens that has been lost? Who will shed a tear for the souls that have been tortured, beaten, extinguished and/or disappeared? That would be left to us I guess. There is no justice; just us.

Here, from the San Francisco Chronicle, are a few more highlights from Mukasey’s traveling minstrel show:

Attorney General Michael Mukasey defended the Bush administration’s wiretapping program Thursday to a San Francisco audience and suggested the Sept. 11 terrorist attacks could have been prevented if the government had been able to monitor an overseas phone call to the United States.
The government "shouldn’t need a warrant when somebody picks up a phone in Iraq and calls the United States," Mukasey said in a question-and-answer session after a speech to the Commonwealth Club
…
Mukasey also defended President Bush’s insistence on retroactive immunity for telecommunications companies that have cooperated with the administration’s surveillance program, in which phone calls and e-mails between U.S. citizens and foreign terrorist suspects were intercepted without warrants.
…
"They have cooperated," Mukasey said of the companies, without naming them. "It just ain’t fair to ask somebody to cooperate with the government" and face a lawsuit for substantial damages, he said.
If Congress denies the companies retroactive immunity, he said, the firms will withdraw their voluntary participation and the government will have to Read more →

Mr. Siegelman Goes To Washington

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From the NYT:

The House Judiciary Committee asked the Justice Department Thursday to temporarily release former Alabama Gov. Don Siegelman from prison in early May to testify before Congress about possible political influence over his prosecution.

A spokeswoman for the committee said Siegelman, a Democrat serving more than seven years in a Louisiana prison, would travel to Washington under guard of the U.S. Marshals Service. She said Committee Chairman John Conyers, a Michigan Democrat, believes Siegelman could provide important information about Justice Department practices under President Bush.

This is good news. Not necessarily because I think it will lend a lot of new facts that will do the trick to spring Siegelman from what appears to be a very bum rap, but because it will really build on the wave of national publicity started by the 60 Minutes segment.

I have not yet seen anything additional as to details, such as who other witnesses would be, exactly what Conyers hopes to accomplish, etc. Perhaps we should help the Judiciary Committee out and come up with a game plan for them. Any suggestions?

UPDATE: Well. Wow. That was fast. I figured the request by Congress would turn up the heat on the 11th Circuit in relation to Siegelman’s release pending appeal, but I didn’t really want to jinx the concept by saying so in the post. BREAKING NEWS from The Birmingham News via TPM:

Former Gov. Don Siegelman will be released from prison, after the 11th Circuit Court of Appeals granted him an appeal bond, the lead prosecutor in the case said.

Acting U.S. Attorney Louis Franklin said he received a courtesy call from the court today. "He’s going to be released," Franklin said.

He said he was disappointed but added, "The 11th Circuit has the discretion to do that, and I respect that.