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The Next Attack: Holder’s Amicus Curiae Brief Against Unlimited Presidential Power

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As Jake Tapper reports, the next attack the McCarthyites have planned is on Eric Holder, for once saying in an amicus curiae brief that it’s possible following the Constitution will make it harder to detain potential terrorists.

In 2004 Attorney General Eric Holder was one of four former Clinton administration officials offering an amicus brief questioning President Bush’s assertion that he had the inherent authority to indefinitely detain as “enemy combatants” American citizens captured in the US.

The brief, offered in the case Donald Rumsfeld v Jose Padilla, can be read HERE.  Holder’s co-authors include former Attorney General Janet Reno, former deputy Attorney General Philip Heymann, and the former counsel for the CIA Jeffrey Smith.

A Republican official on the Senate Judiciary Committee tells ABC News that Holder did not disclose this amicus brief before his confirmation hearings.

The brief is actually refreshing in its simplicity. It recites all the means the executive branch has to combat terrorism, then says the President doesn’t also need the power to detain Americans without any judicial oversight. I can see why and how the Republicans will make a stink of it, but that doesn’t mean they are right.

But there’s a part of the brief that deserves particularly close attention–because it raises the implicit question of why the Bush Administration didn’t just charge Jose Padilla, if they could back up the claims they made about him.

When Padilla was arrested pursuant to the material witness warrant, his terrorist plans were thwarted. He was then available to be questioned to the same extent as any other citizen suspected of criminal activity. Moreover, the facts set forth in the President’s findings, and the facts presented to the District Court, are more than sufficient to support criminal charges against Padilla, including providing material support to designated terrorist organizations, 18 U.S.C. § 2339B; providing material support to terrorists, id. § 2339A; conspiracy to use a weapon of mass destruction, 18 U.S.C. § 2332a; and attempted use of a weapon of mass destruction, id. § 2332a(a)(1).36 Read more →

The Latest Rahmlinology

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I wonder how Greg Craig–ousted from the Administration because he tried to do the right thing on Gitmo–feels about this.

In December 2008, Obama, Emanuel and Republican Sens. John McCain (Ariz.) and Lindsey O. Graham (S.C.) met in Obama’s transition headquarters in Chicago to discuss detainee policy. According to Graham, Obama turned to him at one point and said, ” ‘I’m going to need your help closing Guantanamo Bay. . . . I want you and Rahm to start talking.’ ” They did, and as the discussions progressed, Emanuel grew wary that closing the U.S. military prison in Cuba was possible without opening a slew of other politically sensitive national security problems ” ‘This stuff is like flypaper,’ ” Graham recalled Emanuel saying. ” ‘It will stick to you.’ ”

Graham said Emanuel was well aware that his and any other Republican support for closing Guantanamo Bay hinged on keeping alleged Sept. 11 mastermind Khalid Sheik Mohammed out of civilian court.

According to a person familiar with the conversations, who discussed the confidential deliberation on the condition of anonymity, Emanuel made his case to Obama, articulating the political dangers of a civilian trial to congressional Democrats. Attorney General Eric H. Holder Jr. presented a counterargument rooted in principle, for civilian trials.

The implication, of course, is that Rahm met with the two Republicans on his own. If so, at the very time Rahm was letting Lindsey Graham demand the shredding of the Constitution, Greg Craig was executing the ham-handed report that, though transparently lame, managed to free Rahm of the taint of Rod Blagojevich.

Rahm wouldn’t have survived into the first days of this Administration without Craig’s work. Some gratitude, Rahm.

And remember how one of the reasons why Craig was ousted was because he wasn’t consulting with Congress enough? Well, it sounds like that was a problem, for Rahm, because that’s how he fancied he’d control the process.

“During this whole civilian-trial debate, Rahm’s gut instincts knew that taking KSM to New York for civilian trials was going to be a misstep,” Graham said. “He has a better ear for domestic politics on this issue than anybody in the administration, quite frankly.”

With the Justice Department in charge, Emanuel tried to keep tabs on the process through Graham. “He’d say: ‘How’s it going? Did you tell them they were going to lose you?’ And in terms a sailor could understand.”

One administration official close to Emanuel did not dispute that Obama had overruled Emanuel on some key policy issues. “It’s not germane what the discussion was beforehand, what his idea was, because once a decision is made, he puts himself whole-hog behind it,” the official said of Emanuel. “It would be difficult for people to discern what his [original] position was.”

Except that it was not difficult at all. It has been clear since August that Rahm has been actively undermining Craig and Holder’s efforts to hew to the rule of law. Doing so, in fact, with the guy who lost the election in 2008, John McCain, who still behaves at every turn like someone trying to take down his political opponent. That’s who Rahm has been sleeping with in his efforts to thwart the rule of law.

No wonder we’re seeing so many artificial “Save Rahm!!” stories.

Rahm's Method of Politicizing DOJ

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The NYT has an account of how Rahm and Jim Messina tried to give Eric Holder a minder a year ago.

Last winter, when Attorney General Eric H. Holder Jr. called the United States a “nation of cowards” for avoiding frank conversations on race, President Obama mildly rebuked him in public.

Out of view, Mr. Obama’s aides did far more. Rahm Emanuel and Jim Messina, the White House chief and deputy chief of staff, proposed installing a minder alongside Mr. Holder to prevent further gaffes — someone with better “political antennae,” as one administration official put it.

When he heard of the proposal at a White House meeting, Mr. Holder fumed; soon after, he confronted his deputy, David W. Ogden, who knew of the plan but had not alerted his boss, according to several officials. Mr. Holder fought off the proposal, signaling that his job was about the law, not political messaging.

Now, the NYT portrays this as the White House–or rather, Rahm–deciding Eric Holder lacks the political chops to defend the policies he espouses.

But something else is going on, as well. It’s an example of the way in which Rahm has attempted–and, at times, succeeded–in forcing policy positions onto DOJ by gaming the press.

Consider the clip above, in which Rahm stated “those who devised the policy, [Obama] believes they should not be prosecuted either.” At the time, it was taken as a definitive statement from the Administration that there would be no torture prosecutions. Yet Rahm’s statement went far further than the Obama statement that Rahm references.

In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.

Going forward, it is my strong belief that the United States has a solemn duty to vigorously maintain the classified nature of certain activities and information related to national security. This is an extraordinarily important responsibility of the presidency, and it is one that I will carry out assertively irrespective of any political concern. Consequently, the exceptional circumstances surrounding these memos should not be viewed as an erosion of the strong legal basis for maintaining the classified nature of secret activities. I will always do whatever is necessary to protect the national security of the United States.

This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future. [my emphasis]

While Obama does deride “laying blame for the past,” his very own statement addresses the prosecution solely of those who relied on the torture memos, not those who ordered them up. Yet, by going on a Sunday show, Rahm seeded an assumption that went beyond the President’s own decision. And, just as importantly, assumed decision making powers that belong to the Attorney General.

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Of COURSE Blumenthal Is Running against Civilian Law

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Gregg has a post up expressing shock that Richard Blumenthal, CT’s craven Attorney General running to replace Chris Dodd, advocated against using civilian law for both Khalid Sheikh Mohammed and the UndieBomber, Umar Farouk Abdulmutallab. Gregg argues that Blumenthal’s stance (on this issue and on opposition to Bernanke’s reconfirmation) is directly counter to the Administration’s policy.

To which I’d respond in two ways.

  • Of course he’s running against civilian law.
  • It’s not so clear his stance on civilian law (as opposed to Ben Bernanke) is “completely counter to the position of the administration.”

Here’s a big chunk from Gregg’s post:

But listen to what comes next—listen to this relative non sequitur that Blumenthal volunteers without a prompting question:

I’m determined to chart my own course in Washington, different in many respects from the Administration. I’ve taken the position that the trial of Khalid Sheik Mohammed should be in a military tribunal away from the United States, or, I’m sorry, away from New York and New Haven, and on a number of other issues, for example opposing the reconfirmation of Bernanke as chairman of the Federal Reserve, I have charted my own course, I’m prepared to do it, and issue-by-issue debate either side in what I think is the right thing to do.

What this attorney general and former US attorney has to say about who supposedly is and is not entitled to their rights is pretty shocking,

[snip]

Yet, just over a year after the inauguration of this theoretically still popular president, the candidate for US Senate in Connecticut just went out of his way to distance himself from the White House on two hot issues—a civil trial for KSM and the reappointment of Ben Bernanke as Fed Chair.

But wait, there’s more.

Blumenthal was next asked about whether Christmas crotch-bomber Umar Farouk Abdulmutallab should have been brought into the US criminal process, and the question turned to Miranda rights (I apologize in advance for the meandering quote, but I want to give the entire context):

Let’s talk in real terms about what Mirandizing means. It means reading somebody their rights as opposed to simply interrogating them. I think there’s a general consensus now that in that instance there may have been no real need to read Miranda rights before some interrogation took place. And, in my view, with a terrorist, with our nation potentially at risk, interrogation should be pursued, and the consequences may be that some evidence may be inadmissible, but there is obviously in that case, overwhelming evidence without whatever may be gained or gleaned from the interrogation. So, bottom line, interrogation should have been pursued by a specially trained group of agents without necessarily a lawyer being present, and if at some point there was diminished usefulness to the interrogation, other criminal interrogation should have been applied perhaps by other authorities.

Yes, this is utter garbage—in terms of what actually happened to Abdulmutallab, what Miranda rights actually are, and who is entitled to them by law—but stick with me:

Very often the reading of rights diminishes the usefulness of subsequent interrogation, the reason being simply that the defendant chooses to have a lawyer present, or chooses to cease talking. And I would have pursued the interrogation without the Miranda rights because I believe that the usefulness of learning about contacts from Yemen and elsewhere in the world and potential immediate attacks that may be known to this individual outweigh the benefits of having that at the trial

Yes, more inaccuracies and inanities in search of a position, so questioner Lehrer wanted to clarify, should Abdulmutallab be tried in civilian court? “Probably not in criminal court,” says Blumenthal.

Stupid, yes, but importantly here, also completely counter to the position of the administration of a president still thought popular in Dick’s state.

Now, as I suggested, it should surprise no one that a “finger-in-the-wind” politician like Blumenthal is taking this stance against civilian law.

As I pointed out earlier this week, Scott Brown says he won in MA (which is slightly to the left of CT, if you look at it from my perspective) because he ran against civilian law.

Republicans discovered the renewed power of terrorism in last month’s special Senate election in Massachusetts. Neil Newhouse, the pollster for the Republican victor, Scott Brown, said voters responded to the way Mr. Brown framed the issue, supporting him 63 percent to 26 percent when told he favored charging suspected terrorists as enemy combatants in a military tribunal while his Democratic opponent would give them constitutional rights and a civilian trial.

“This moved voters more than the health care issue did,” Mr. Newhouse said. “The terrorism stuff resonated, and it wasn’t just from the advertising we did.” [my emphasis]

Scott Brown’s pollster found that MA voters–voting to replace Ted Kennedy, of all people!!!–were more than twice as likely to support Brown for advocating against civilian law than Martha Coakley, the AG from the state next door to Blumenthal’s, who supported it. Scott Brown won at least partly because he trashed civilian law (he even went so far as to endorse water-boarding explicitly, in MA, and still won).

And, as I also pointed out this week, in response to the lesson they took from the Brown win, Republicans are running hard against civilian law. “If this approach of putting these people in U.S. courts doesn’t sell in Massachusetts, I don’t know where it sells,” Mitch McConnell told someone at a Heritage event on February 3. He went on to say, “You can campaign on these issues anywhere in America.”

Now, I agree with Mitch McConnell on approximately nothing policy-wise. But he’s a smarter politician than a lot of guys on our side. And he, at least, believes “you can campaign” against civilian law “anywhere in the country.” Including Massachusetts. And, presumably, Connecticut.

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Obama Prepares to Sacrifice Justice and National Security for Political Expediency

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Check out the way the WaPo reports the news–based on three anonymous Administration sources–that Obama will be personally involved in choosing the location of the Khalid Sheikh Mohammed trial.

President Obama is planning to insert himself into the debate about where to try the accused mastermind of the Sept. 11, 2001, attacks, three administration officials said Thursday, signaling a recognition that the administration had mishandled the process and triggered a political backlash.

Obama initially had asked Attorney General Eric H. Holder Jr. to choose the site of the trial in an effort to maintain an independent Justice Department. But the White House has been taken aback by the intense criticism from political opponents and local officials of Holder’s decision to try Khalid Sheik Mohammed in a civilian courtroom in New York.

Administration officials acknowledge that Holder and Obama advisers were unable to build political support for the trial. And Holder, in an interview Thursday, left open the possibility that Mohammed’s trial could be switched to a military commission, although he said that is not his personal and legal preference.

“At the end of the day, wherever this case is tried, in whatever forum, what we have to ensure is that it’s done as transparently as possible and with adherence to all the rules,” Holder said. “If we do that, I’m not sure the location or even the forum is as important as what the world sees in that proceeding.” [my emphasis]

The WaPo’s sources say this “triggered a political backlash” and that they’re involving Obama because they’re “taken aback by the intense criticism.”

It’s not until the 16th paragraph of the article that the WaPo reports the big reason why Holder originally chose a civilian trial (and therefore, for security reasons, NY): because it stands the best chance of success.

In his interview, Holder reiterated his belief that a civilian trial would be the best legal option for Mohammed. “Trying the case in an article III court is best for the case and best for our overall fight against al-Qaeda,” he said. “The decision ultimately will be driven by: How can we maximize our chances for success and bring justice to the people responsible for 9/11, and also to survivors?”

Instead of focusing on what the best policy decision is–the many reasons why an Article III court is more likely to lead to an uncontested verdict and closure–the WaPo focuses instead on who bears the blame for not dealing with the politics of the decision.

Managing the politics of terrorism has not been assigned to one person at the White House. Many people are dealing with the issue of the trial, including Chief of Staff Rahm Emanuel, National Security Council Chief of Staff Denis McDonough, deputy national security adviser Thomas E. Donilon, senior adviser David Axelrod and White House press secretary Robert Gibbs. Increasingly, Phil Schiliro, the head of White House legislative affairs, has worked on building support in Congress. The new White House counsel, Bob Bauer, is also managing “a central piece of it,” one senior White House adviser said.

Now, I don’t necessarily fault the WaPo for this focus. After all, horserace is what it does. But the story itself is just one piece of evidence that the Obama Administration continues to mishandle this issue.

This is a question not only of justice, but really, of whether military commissions will work. There’s little evidence they will, and much reason to doubt it. But instead of telling that story, the Obama Administration has now turned this into another example of back-room deal-making rather than the most effective solution.

Where Will Brennan Land in Rahm v. DOJ Spat?

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As Jason notes, David Axelrod has already taped a CSPAN response to Jane Mayer’s piece on Rahm’s spat about distractions like “the law” and “human rights” with Eric Holder and Greg Craig. In it, Axe appears to try to distance the White House from the decisions that have been attacked in the last few weeks, particularly the decision to try Khalid Sheikh Mohammed in New York.

David Axelrod did not dispute that a rift had emerged between the White House and the Justice Department over the 9/11 case, which has recently become a political sore spot for the administration.Despite a rising tide of opposition to having a trial in Manhattan, which has sent the administration scrambling to find another location, Axelrod said it was not a mistake for Holder to announce the trial would be held there. But Axelrod did not defend it — or portray it in any way as a decision that came from the White House. “The attorney general was responding under the protocol that was developed between the Department of Justice and the Department of Defense for the prosecution of terrorists,” Axelrod said in an interview for C-SPAN’s “Newsmakers” series set to air on Sunday.

Acknowledging White House resistance to the Justice Department decisions, Axelrod continued: “Rahm has a perspective that’s different. He’s the chief of staff. He looks at things from a legislative perspective, he looks at things from other perspectives.”

Side note: Responsible journalism would dictate that Anne Kornblut avoid the metonymy of “White House” here, as it obscures whether this is just Axe and Rahm working the press as they do, or Obama as well. After all, if Obama has decided to give Holder autonomy on this decision, he has, in fact, supported such a decision, or should have. But therein may be the real root of White House dysfunction on this issue.

So Rahm and Axe are out there declaring that the decision to try KSM in a civilian trial in NY belongs entirely to DOJ and DOD, which Axe appears to portray as somehow divorced from the authority and will of the White House (and therefore, from Obama). In the likelihood that the trial will be moved to some other venue altogether, then, Axe and Rahm can continue to make Holder the scapegoat. Heck, they may even be trying to force Holder out like they have forced Craig out.

But what’s going to happen when the White House strongly owns its decisions on the handling of the Underwear Bomber? They’ve got John Brennan on Meet the Press tomorrow to defend the Administration’s decisions on his treatment. As Mark Ambinder tweets,

Admin puts Brennan on Sunday shows to defend Abdulmuttalab’s handling. He is steaming mad about the CW.

Whatever my complaints with Brennan, he does come off as less of a backroom bumbler than Rahm and Axe of late. And he plans to go on TV and rebut the conventional wisdom about the decision to mirandize Umar Farouk Abdulmutallab and try him in civilian court.

In other words, Brennan will be making the same defense of civilian law as Eric Holder has. Maybe, in the process, he’ll explain how Abdulmutallab’s testimony has already led the White House to put Anwar al-Awlaki on a kill list, just to look tough in the process!

So it seems that as Rahm and Axe try to set up and scapegoat Holder, one of the grownups is about to go on TV and own not the KSM decision, but certainly the decision to sustain our system of civilian law.

Mayer on Rahm

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I first teased out Rahm Emanuel’s role in reversing Obama’s early efforts to reclaim our country from torture last July. In August, my comments at Netroots Nation focused on Rahm’s role in preventing accountability for torture. I kept tracking Rahm’s campaign to prevent accountability here, here, and here.

Today, Jane Mayer has an extended profile of Eric Holder that fleshes out what we’ve all known: Rahm’s the guy who killed accountability for torture.

Emanuel viewed many of the legal problems that Craig and Holder were immersed in as distractions. “When Guantánamo walked in the door, Rahm walked out,” the informed source said. Holder and Emanuel had been collegial since their Clinton Administration days. Holder’s wife, Sharon Malone, an obstetrician, had delivered one of Emanuel’s children. But Emanuel adamantly opposed a number of Holder’s decisions, including one that widened the scope of a special counsel who had begun investigating the C.I.A.’s interrogation program. Bush had appointed the special counsel, John Durham, to assess whether the C.I.A. had obstructed justice when it destroyed videotapes documenting waterboarding sessions. Holder authorized Durham to determine whether the agency’s abuse of detainees had itself violated laws. Emanuel worried that such investigations would alienate the intelligence community. But Holder, who had studied law at Columbia with Telford Taylor, the chief American prosecutor in the Nuremberg trials, was profoundly upset after seeing classified documents explicitly describing C.I.A. prisoner abuse. The United Nations Convention Against Torture requires the U.S. to investigate credible torture allegations. Holder felt that, as the top law-enforcement officer in the U.S., he had to do something.

Emanuel couldn’t complain directly to Holder without violating strictures against political interference in prosecutorial decisions. But he conveyed his unhappiness to Holder indirectly, two sources said. Emanuel demanded, “Didn’t he get the memo that we’re not re-litigating the past?”

That’s what human rights are to Rahm Emanuel–mere distractions, speed bumps on his road to nine wins or–in the case of health care reform–epic failure.

Where Mayer breaks real news in her description of Rahm’s role in preventing accountability is her description of why Rahm opposed so many of Holder’s decisions: because they offended Lindsey Graham.

At the White House, Emanuel, who is not a lawyer, opposed Holder’s position on the 9/11 cases. He argued that the Administration needed the support of key Republicans to help close Guantánamo, and that a fight over Khalid Sheikh Mohammed could alienate them. “There was a lot of drama,” the informed source said. Emanuel was particularly concerned with placating Lindsey Graham, the Republican senator from South Carolina, who was a leading proponent of military commissions, and who had helped Obama on other issues, such as the confirmation of Supreme Court Justice Sonia Sotomayor. “Rahm felt very, very strongly that it was a mistake to prosecute the 9/11 people in the federal courts, and that it was picking an unnecessary fight with the military-commission people,” the informed source said. “Rahm had a good relationship with Graham, and believed Graham when he said that if you don’t prosecute these people in military commissions I won’t support the closing of Guantánamo. . . . Rahm said, ‘If we don’t have Graham, we can’t close Guantánamo, and it’s on Eric!’ ”

At Emanuel’s urging, Holder spoke with Graham several times. But they could not reach an agreement. Graham told me, “It was a nonstarter for me. There’s a place for the courts, but not for the mastermind of 9/11.” He said, “On balance, I think it would be better to close Guantánamo, but it would be better to keep it open than to give these guys civilian trials.” Graham, who served as a judge advocate general in the military reserves, vowed that he would do all he could as a legislator to stop the trials. “The President’s advisers have served him poorly here,” he said. “I like Eric, but at the end of the day Eric made the decision.” Last week, Graham introduced a bill in the Senate to cut off funding for criminal trials related to 9/11. [my emphasis]

All along Rahm’s campaign against Greg Craig and Holder he left complaint after complaint that they had ruined the relationship with Congress. This, I suppose, is what Rahm means: doing anything–even those actions dictated by international law–that offend poor Lindsey’s sensibilities is a mistake, tantamount to ruining the President’s relationship with Congress. And I guess Rahm is okay with that–ceding the President’s authority on national security and legal issues to Lindsey Graham.

And look what you get out of that: Lindsey in a snit, pouting that the Attorney General of the United States determined to try criminals in a civilian court. And in response, refusing to close Gitmo.

In other words, we can’t close Gitmo because Obama’s “crack” Chief of Staff has willingly ceded the authority of the Attorney General of the United States to one Senator from the opposing party, and that single Senator is pouting because the Attorney General might choose law over Kangaroo Courts.

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Holder to Republicans: Stop Being Such WATBs about Miranda Warnings and Mukasey's Decisions

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Eric Holder just sent the following letter to a bunch of whiny Republican Senators trying to make an issue about Americans respecting the rule of law. (I’m posting the whole thing bc there’s a lot of excellent smack down in it.)

Dear Senator McConnell:

I am writing in reply to your letter of January 26,2010, inquiring about the decision to charge Umar Farouk Abdulmutallab with federal crimes in connection with the attempted bombing of Northwest Airlines Flight 253 near Detroit on December 25, 2009, rather than detaining him under the law of war. An identical response is being sent to the other Senators who joined in your letter.

The decision to charge Mr. Abdulmutallab in federal court, and the methods used to interrogate him, are fully consistent with the long-established and publicly known policies and practices of the Department of Justice, the FBI, and the United States Government as a whole, as implemented for many years by Administrations of both parties. Those policies and practices, which were not criticized when employed by previous Administrations, have been and remain extremely effective in protecting national security. They are among the many powerful weapons this country can and should use to win the war against al-Qaeda.

I am confident that, as a result of the hard work of the FBI and our career federal prosecutors, we will be able to successfully prosecute Mr. Abdulmutallab under the federal criminal law. I am equally confident that the decision to address Mr. Abdulmutallab’s actions through our criminal justice system has not, and will not, compromise our ability to obtain information needed to detect and prevent future attacks.

There are many examples of successful terrorism investigations and prosecutions, both before and after September 11, 2001, in which both of these important objectives have been achieved — all in a manner consistent with our law and our national security interests. Mr. Abdulmutallab was questioned by experienced counterterrorism agents from the FBI in the hours immediately after the failed bombing attempt and provided intelligence, and more recently, he has provided additional intelligence to the FBI that we are actively using to help protect our country. We will continue to share the information we develop with others in the intelligence community and actively follow up on that information around the world.

1. Detention. I made the decision to charge Mr. Abdulmutallab with federal crimes, and to seek his detention in connection with those charges, with the knowledge of, and with no objection from, all other relevant departments ofthe government. On the evening of December 25 and again on the morning of December 26, the FBI informed its partners in the Intelligence Community that Abdulmutallab would be charged criminally, and no agency objected to this course of action. In the days following December 25 – including during a meeting with the President and other senior members of his national security team on January 5 – high-level discussions ensued within the Administration in which the possibility of detaining Mr. Abdulmutallab under the law of war was explicitly discussed. No agency supported the use of law of war detention for Abdulmutallab, and no agency has since advised the Department of Justice that an alternative course of action should have been, or should now be, pursued.

Since the September 11,2001 attacks, the practice of the U.S. government, followed by prior and current Administrations without a single exception, has been to arrest and detain under federal criminal law all terrorist suspects who are apprehended inside the United States. The prior Administration adopted policies expressly endorsing this approach. Under a policy directive issued by President Bush in 2003, for example, “the Attorney General has lead responsibility for criminal investigations of terrorist acts or terrorist threats by individuals or groups inside the United States, or directed at United States citizens or institutions abroad, where such acts are within the Federal criminal jurisdiction of the United States, as well as for related intelligence collection activities within the United States.” Homeland Security Presidential Directive 5 (HSPD-5, February 28,2003). The directive goes on to provide that “(following a terrorist threat or an actual incident that falls within the criminal jurisdiction of the United States, the full capabilities of the United States shall be dedicated, consistent with United States law and with activities of other Federal departments and agencies to protect our national security, to assisting the Attorney General to identify the perpetrators and bring them to justice.”

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OPR Report Timeline

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In response to the news that David Margolis spiked the misconduct conclusion in the OPR Report on OLC justifications for torture, I wanted to put together a timeline of its construction. Two things stick out. First, the role of Mary Patrice Brown–who replaced Marshall Jarrett at a time when OPR was backing off its offer of transparency–deserves further scrutiny in this report. When she presented the report to Holder in August, she apparently recommended that he reopen investigations into torture.

Also, I still think the timing suggests DOJ delayed its release to protect Yoo in the Padilla suit.

January 4, 2008: Padilla sues Yoo.

February 12, 2008: Senators Durbin and Whitehouse request that OPR investigate torture authorizations

February 18, 2008: Marshall Jarrett informs Durbin and Whitehouse that torture authorizations included in OPR investigation of OLC, agrees to share report with them and–possibly–release an unclassified public version

Late December 2008: Draft of OPR submitted, Michael Mukasey and Mark Filip demand that Yoo, Bybee, and Bradbury get to respond

February 14, 2009: Isikoff reports that OPR report came to harsh conclusions of OLC lawyers’ work; reports Mukasey and Filip allowance for lawyer response

February 16, 2009: Whitehouse and Durbin inquire about process used with OPR report

March 6, 2009: Hearing in Padilla-Yoo law suit

March 25, 2009: OPR response (signed by M. Faith Burton, Acting AAG) to Whitehouse and Durbin states Mukasey/Filip comments already integrated, OLC lawyer counsel in process of reviewing report; it doesn’t mention “career prosecutor” review:

When the review and comment [from Yoo, Bybee, and Bradbury’s lawyers] is concluded, OPR intends to review the comments submitted and make any modifications it deems appropriate to the findings and conclusions. OPR will then provide a final report to the Attorney General and Deputy Attorney General. After any additional review they deem appropriate, the department will determine what disclosures should be made.

The letter backs off Jarrett’s earlier promise to release the report:

In determining appropriate disclosures, we will be mindful of the considerable interest that Congress has previously expressed in connection with this matter and will seek to accommodate the information needs of our oversight committees in response to requests from their chairmen. While we appreciate your request for a disclosure commitment, we can only fully evaluate the scope of appropriate disclosures once the review process is completed. We trust you understand that those decisions depend in part on the content and conclusions of the OPR final report and the outcome of any further Departmental review.

March 31, 2009: Durbin and Whitehouse reply to OPR letter

April 8, 2009: Holder names Mary Patrice Brown to replace former OPR head, Marshall Jarrett

April 29, 2009: Leahy invites Bybee to testify to Senate Judiciary Committee; Bybee panics in response

May 4, 2009: According to AAG Ronald Welch, deadline for Yoo, Bybee, and Bradbury response to OPR report; on that day, Welch responds to Durbin and Whitehouse laying out the following as “normal” process for OPR reports:

In the past, former Department employees who were subjects of OPR investigations typically have been permitted to appeal adverse OPR findings to the Deputy Attorney General’s Office. A senior career official usually conducted that appeal by reviewing submissions from the subjects and OPR’s reply to those submissions, and then reaching a decision on the merits of the appeal. Under this ordinary procedure, the career official’s decision on the merits was final. This appeal procedure was typically completed before the Department determined whether to disclose the Report of Investigation to the former employees’ state bar disciplinary authorities or to anyone else. Department policy usually requires referral of OPR’s misconduct findings to the subject’s state bar disciplinary authority, but if the appeal resulted in a rejection of OPR’s misconduct findings, then no referral was made. This process afforded former employees roughly the same opportunity to contest OPR’s findings that current employees were afforded through the disciplinary process. While the Department has previously released public summaries of OPR reports under some circumstances, public release of the reports themselves has occurred only rarely. In the past, the release of a public summary occurred only after the subjects were afforded an opportunity to appeal any adverse findings.

The May 4 letter also informed the Senators of the CIA review.

May 6, 2009: WaPo reports OPR report still recommends sanctions against Yoo and Bybee

June 12, 2009: Judge rules Padilla suit can move forward

June 17, 2009: Whitehouse reveals that CIA conducting “substantive comment and classification review”

July 9, 2009: Yoo appeals decision on Padilla suit–and DOJ stops representing Yoo; Miguel Estrada would take on that role

July 12, 2009: Scott Horton reports that reading OPR Report was one thing that convinced Eric Holder to launch criminal review of torture

Prior to August 24, 2009: OPR submits report to Holder, recommends reopening criminal investigation into torture

August 24, 2009: Holder announces criminal investigation, citing (among other things) OPR report

November 16, 2009: Yoo submits opening brief in Padilla suit appeal

November 18, 2009: Holder announces OPR report due out “this month;” Court grants government extension to December 3 to submit amicus brief

November 20, 2009: Padilla requests extension–because of delay in government brief–until January 15

December: Margolis, purportedly reviewing OPR report, out sick (though reports say Yoo’s lawyer making last appeal for changes)

December 3, 2009: DOJ submits amicus brief claiming that OPR can address Padilla’s concerns

December 29, 2009: Yoo starts book publicity

January 18, 2010: Padilla submits response to appeal

January 29, 2010: Klaidman and Isikoff report OPR conclusions have been altered

Feingold, Durbin, and Wyden Demand the OLC Opinion on Exigent Letters

/in , /by

As I reported yesterday, the Dawn Johnsen-less OLC wrote an opinion on January 8 retroactively authorizing the FBI’s inappropriate use of the exigent letters to snoop on Americans’ telecomm records.

Now, Senators Feingold, Durbin, and Wyden, have demanded that opinion from Eric Holder. Of note, they tie their demand into DOJ IG Glenn Fine’s comment that DOJ should notify Congress of the opinion and this use of exigent letters so it can consider legislation on that count.

We write specifically because we believe the Department should immediately provide to Congress a copy of the January 8, 2010, Office of Legal Counsel (OLC) opinion that is referenced in the OIG report and that apparently interprets the FBI’s authority to obtain phone records. Although much of the information about the OLC opinion is redacted in the public version of the OIG report, the opinion appears to have important implications for the rights of Americans. The report states that “the OLC agreed with the FBI that under certain circumstances [REDACTED] allows the FBI to ask for and obtain these [phone] records on a voluntary basis from the providers, without legal process or a qualifying emergency.” (p. 264) It further states that “we believe the FBI’s potential use of [REDACTED] to obtain records has significant policy implications that need to be considered by the FBI, the Department, and the Congress.” (p. 265) And finally, it states that the OIG recommends “that the Department notify Congress of this issue and of the OLC opinion interpreting the scope of the FBI’s authority under it, so that Congress can consider [REDACTED] and the implications of its potential use.” (p. 268)

In light of the OIG’s recommendation, please provide Congress with the January 8 OLC opinion immediately.

Remember, as members of the Senate Judiciary Committee, Feingold and Durbin (and probably Senate Intelligence Committee member Wyden) have seen the unredacted report, including a description of the OLC’s agreement of the FBI’s use of the letters. And now they’re demanding the opinion itself.

Though, you’d think that, given Fine’s recommendation that DOJ “notify Congress … of the OLC opinion,” the Senate wouldn’t have had to ask.