Posts

OPR Report Timeline

/in , /by

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

John Yoo: Much More, and Much Less, Than a "Mere Lawyer"

/in /by

Yoo casts himself here as a mere lawyer, but he was much more (and much less).

So reads the Padilla response to Yoo’s efforts to dismiss Padilla’s suit against him.

Padilla’s team goes on to argue why the 9th Circuit must allow Padilla’s suit against Yoo for violation of his constitutional rights to continue.

The district court’s order should be affirmed. First, the court properly concluded that an American citizen seized from a civilian jail and subjected to years of military detention and torture has a remedy under Bivens. The habeas statute does not extinguish a damages remedy: while habeas can stop an unconstitutional detention from continuing, it cannot remedy an unlawful detention that has already occurred-and provides no relief to a torture victim. Bivens deters unconstitutional conduct, and the Supreme Court long ago affirmed that this deterrence is, if anything, more important when a defendant–even the Attorney General–invokes national security in an effort to preclude judicial review. The need to deter the military imprisonment and tortre of Americans in America strongly counsels providing Padila with a remedy for the serious, systematic and willful constitutional violations.

Second, the district court properly rejected Yoo’s claim to lack causal responsibility.. He set the constitutional violations in motion: as a member of the War Council, he formulated policies of extra-judicial detention and brutal interrogation visited upon Padilla; then, as a government attorney, he provided interrogators with the legal cover they demanded before implementing those policies.

Third, it has long been clearly established that military agents cannot seize a citizen from a civilian jail, transport him to a military prison, detain him there indefinitely and incommunicado without criminal charge or conviction, and subject him to a program of brutal interrogations, sensory deprivation, and inhuman conditions. Y 00 contends that all those rights became unclear when the Executive labeled Padila an “enemy combatant,” but no reasonable official could have believed that the Executive’s unilateral labeling of a citizen would allow it to transgress core freedoms long recognized by the Supreme Court.

They go onto to explain why lawyers’ conduct must not be immune from liability.

If merely being a government lawyer insulates Yoo’s conduct from liability, then there is no limit to what government lawyers fired up with personal “zeal” can counsel: the construction of secret and lawless interrogation sites in American cities, dragnets based entirely on race or religion, the summary execution of American citizens on American streets.

And note that Yoo tried to dismiss precedents that are directly on point in this suit.

Y00 does not cite any case holding that lawyers cannot be held liable for giving knowingly false advice. Instead, he protests that a case cited by Plaintiffs involved “claims against government lawyers for providing intentionally incorrect legal advice.” Br.32 (citing Donovan, 433 F.2d at 744-45). Padilla alleges exactly that-that Y00 intentionally misrepresented the law to shield policies that he helped formulate and set in motion, providing legal cover for unconstitutional policies. Like Y00, the government lawyers in Donovan claimed that they had provided advice “in good faith” and that their opinion was based on a reasonable legal belief. But the defendants’ assertions of good faith were factual issues for the jury, not matters for the court even on summary judgment.

Padilla’s team then goes on to remind of the German lawyers prosecuted for war crimes.

Perhaps the most interesting argument in here, though, is the reference to a State Department document asserting that victims of domestic torture have access to Bivens.

Congress has criminalized torture, see 18 U.S.C. § 2340, the President has signed and the Senate has ratified the Convention Against Torture, 6 U.S.T. 3314, under which “[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war. . .may be invoked as a justification of torture,” and the Executive has not only prohibited the use of sensory deprivation, cruel and degrading torture, and physical or mental torture, Army Reg. 190-8 (criminalizing acts “intended to inflict severe physical or mental pain or suffering”), but plainly stated that a Bivens remedy is available to domestic torture victims like Padilla, see U.S. Written Response to Questions Asked by U.N. Committee Against Torture

ir 5 (Apr. 28,2006), available at http://www.state.gov/g/drl/rls/68554.hrm.8 [ed note, this should be: http://www.state.gov/g/drl/rls/68554.htm]

The State reference goes to a passage which reads:

U.S. law provides various avenues for seeking redress, including financial compensation, in cases of torture and other violations of constitutional and statutory rights relevant to the Convention. Besides the general rights of appeal, these can include any of the following, depending on the location of the conduct, the actor, and other circumstances:

[snip]

Suing federal officials directly for damages under provisions of the U.S. Constitution for “constitutional torts,” see Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), and Davis v. Passman, 442 U.S. 228 (1979);

Read more →

Another New Month, and Still No OPR Report

/in /by

John-YooJohn Yoo has spent the last several weeks insisting he did not give George W Bush a blow job–while admitting that sometimes, he just had to play favorites with the President.

Were you close to George Bush?

No, I’ve never met him. I don’t know Cheney either. I have not gone hunting with him, which is probably a good thing for me.

[snip]

So you’re saying you were just one notch above an intern, you and Monica Lewinsky?

She was much closer to the president than I ever was.

[snip]

When you say you had “a client,” do you mean President Bush?

Yes, I mean the president, but also the U.S. government as a whole.

But isn’t a lawyer in the Department of Justice there to serve the people of this country?

Yes, I think you are quite right, when the government is executing the laws, but if there’s a conflict between the president and the Congress, then you have to pick one or the other.

Meanwhile, it has been 48 days since Eric Holder said the OPR Report on John Yoo and other OLC lawyers would be released by the end of November. And yet we still don’t have that report.

That’s particularly interesting because–as I pointed out a month ago, just days after Holder promised the OPR report imminently, the lawyers for Jose Padilla got an extension on their appellate response to Yoo and the government’s claim that Padilla couldn’t sue Yoo for all the bad lawyering he did. Their deadline? January 15, now just 11 days away.

In the government’s amicus brief in this suit, they boasted that Padilla didn’t need to sue Yoo personally, because the government had means to punish him for bad lawyering on its own. One means they boasted of? An OPR investigation.

In addition to potential discipline by a state bar, Department of Justice attorneys are also subject to investigation by the Office of Professional Responsibility (“OPR”), see 28 C.F.R. 0.39 and the Office of the Inspector General, 5 U.S.C. App. §8E. Section 1001 of the USA Patriot Act directs the Department of Justice Inspector General to review information and receive complaints alleging abuses of civil rights and civil liberties by Department of Justice employees. See Pub. L. 107-56, § 1001, 115 Stat. 391 (2001). OPR and the Office of the Inspector General have broad investigatory powers and can recommend discipline and even criminal prosecution, where appropriate. [my emphasis]

At the rate we’re going, Padilla’s lawyers will have to file their response to the boast that OPR can offer adequate discipline in cases like this, without yet learning what OPR did in this particular case.

I’m increasingly convinced that’s by design.

Yoo to OPR: Law is “Largely Irrelevant”

/94 Comments/in , /by

(Mary has graciously tutored many of us here about the significance of the Civil War case, Ex parte Milligan, to contemporary debates about detention (see also here and here and here). So when I saw that John Yoo had written an article trying to explain why he’s been ignoring Milligan all these years, I asked Mary to rip the article to shreds. She does not disappoint.)

The hugely relevant (at least, in the context of a completed but unreleased Office of Professional Responsibility investigation) John Yoo has taken to the heavily trafficked pages of the Chapman Law Review to pursue his personal war – on law. In his piece titled, Lincoln and Habeas: Of Merryman, Milligan, and McCardle Yoo utilizes the resources of Boalt Hall and Chapman to finally find and discuss the Civil War case of Ex parte Milligan; a case which managed to elude Yoo during his time spent writing memos for the Office of Legal Counsel. Yoo chooses the cases of Ex Parte Merryman and Ex Parte McCardle to bookend his claims of the “irrelevance” of Milligan, and of law in general, during times of war.

Before we even get to that discussion, though, here’s a heads up.

A few facts and at least one important contemporaneous case – Ex parte Yerger – are as mysteriously missing from Yoo’s law review article as Milligan was from his OLC opinions. On the other hand, when your central argument is that case law means nothing, perhaps it is no flaw to fail to include relevant and contemporaneous case law.

Yoo’s argument (to OPR, the Supreme Court, state bars, and courts where claims against him for his role in torture are now pending) goes pretty much like this: Lincoln didn’t always follow the letter of the law and he “got away” with it. Ich bin ein Lincoln.

In essence Yoo claims that, when the courts try to impose law on the Executive branch, both the President and Congress will respond by disenfranchising and enfeebling the courts, so if courts know what is good for them, they’ll butt out. Read more →

Yoo, OPR, and the Ninth Circuit

/16 Comments/in /by

Scott Horton notes that the Obama Administration has made new sweeping arguments about why John Yoo should not be held responsible for authorizing torture used on Jose Padilla.

The Holder Justice Department has filed a sweeping amicus brief in the Padilla v. Yoo case before the Ninth Circuit, seeking to make absolute the immunity granted Justice Department lawyers who counsel torture, disappearings, and other crimes against humanity. The case was brought by Jose Padilla, who claims that he was tortured as the direct result of memoranda written by Yoo, now a law professor at Berkeley. At this stage, the case does not address the factual basis of Padilla’s claims, but documents that have been declassified by the Department of Justice make it clear that the charges have a firm basis in fact. Here’s the portion of the opinion authored by a lifelong Republican, Bush-appointed judge that the Justice Department found so objectionable:

Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct….

The Holder Justice Department insists that they are absolutely not responsible, and that they are free to act according to a far lower standard of conduct than that which governs Americans generally. Indeed, this has emerged as a sort of ignoble mantra for the Justice Department, uniting both the Bush and Obama administrations.

I’m most interested in this aspect of the appellate argument (part of which Horton discusses).

In arguing that a Bivens action should not be recognized here, we are not suggesting that the actions of a Department of Justice attorney advising the Attorney General, the President and/or other agencies should go unchecked. Congress has enacted 28 U.S.C. § 530B (also known as the “McDade Amendment”). Under Section 530B, Department of Justice attorneys, as well as other government attorneys, “shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.” 28 U.S.C. § 530B. State bar rules speak to 2 an attorney’s ethical duties when advising a client. See, e.g., ABA MODEL RULES OF PROFESSIONAL CONDUCT, 2.1, 3.1. To the extent someone believes that a Department of Justice attorney has violated the applicable bar rules, under the McDade Amendment, they can file a complaint with the relevant state bar.

In fact, complaints have been filed with the District of Columbia and Pennsylvania bars against defendant Yoo. Under the McDade Amendment, Yoo potentially could be subject to discipline if he violated any of the applicable rules and/or standards.

In addition to potential discipline by a state bar, Department of Justice attorneys are also subject to investigation by the Office of Professional Responsibility (“OPR”), see 28 C.F.R. 0.39 and the Office of the Inspector General, 5 U.S.C. App. §8E. Section 1001 of the USA Patriot Act directs the Department of Justice Inspector General to review information and receive complaints alleging abuses of civil rights and civil liberties by Department of Justice employees. See Pub. L. 107-56, § 1001, 115 Stat. 391 (2001). OPR and the Office of the Inspector General have broad investigatory powers and can recommend discipline and even criminal prosecution, where appropriate. [my emphasis]

The government is arguing that Bivens isn’t appropriate because there are other means of punishing Yoo’s bad lawyering.

And they specifically invoke OPR investigations.

Now, in any case, this is an already well-worn Obama tactic. They have repeatedly done what they needed to do, legally, to ensure that the executive is the only one who gets to check the executive’s power and (just as importantly) to prevent the Courts from reviewing executive branch actions.

But it’s all the more interesting, given the delay of the OPR report which–Eric Holder told the Senate on November 18–would be out by the end of the month. Meaning, last month (and no, it’s not coming out today either).

Had DOJ already released that OPR report, that passage would either say, “we’ve already recommended Yoo be disciplined and so basically agree with plaintiffs” or “well, we looked, but we think Yoo should skate and so this claim that there are other means of redress is really just BS.”

Read more →

Torturing Binyam Mohamed–Before Bybee Two

/9 Comments/in /by

A few of you have alerted me to this judgment from the Binyam Mohamed case in the UK. As a reminder, Mohamed has been trying to force the British government to release information about torture he suffered at the hands of Americans and Pakistanis. But the British government refuses to allow the information to be revealed publicly because–they say–it’ll threaten the relationship (and intelligence sharing) between the UK and US. Here Andy Worthington’s post on this ruling, and here’s Clive Stafford Smith’s.

The ruling suggests that Americans were using torture techniques on Binyam Mohamed in April and May 2002, before use of those techniques was given (dubious) legal sanction with the Bybee Two memo on August 1, 2002.

The ruling is sort of like a Russian egg, arguing that passages from one ruling explaining why passages from an earlier ruling should not be redacted themselves should not be redacted. It is basically an argument in favor of making four passages from an October judgment (these are four passages from ruling five–I’ll call them 4/5) publicly available. The Foreign Secretary David Miliband doesn’t want those passages to become available because doing so would reveal what was redacted from an earlier judgment (these are seven passages from ruling one–I’ll call them 7/1).

[The Foreign Secretary argues that] the four passages in the fifth judgment [4/5] indicate what is in the seven paragraphs redacted from the first judgment [7/1].

But the High Court argues that even if 7/1 should not be released (they don’t buy this, but use the assumption to make their argument), there is no reason 4/5 cannot be.

Now, the High Court appears to be using the Bybee Two memo (the one laying out the 10 techniques approved for use with Abu Zubaydah) as its basis for arguing that 4/5 can be released. They note that “the entire content” of 4/5 is in the public domain. The have already unredacted a passage in this ruling reading,

One of those memoranda dated 1 August 2002 [from Jay Bybee to John Rizzo] made clear that the techniques described were those employed against Mr. Zubdaydah.

And they note that one of the paragraphs redacted in 4/5 “is a verbatim quotation from the memoranda made public on 16 April 2009.” From this, we can assume that the content of that passage is an exact quotation from the Bybee Two memo.

Read more →

A Trial Showing Torture Was Unnecessary

/39 Comments/in , /by

I’m not amused that the Wall Street Journal solicited an op-ed attacking the decision to try KSM in civilian court from one of the people–John Yoo–with the biggest conflict on such a decision. It’s yet more proof that Rupert Murdoch is engaged in a partisan pursuit, even with the WSJ.

But I am amused at the way John Yoo dismantles his own argument. Take these two claims, for example:

Prosecutors will be forced to reveal U.S. intelligence on KSM, the methods and sources for acquiring its information, and his relationships to fellow al Qaeda operatives. The information will enable al Qaeda to drop plans and personnel whose cover is blown. It will enable it to detect our means of intelligence-gathering, and to push forward into areas we know nothing about.

[snip]

For a preview of the KSM trial, look at what happened in the case of Zacarias Moussaoui, the so-called 20th hijacker who was arrested in the U.S. just before 9/11. His trial never made it to a jury. Moussaoui’s lawyers tied the court up in knots.

All they had to do was demand that the government hand over all its intelligence on him. The case became a four-year circus, giving Moussaoui a platform to air his anti-American tirades. The only reason the trial ended was because, at the last minute, Moussaoui decided to plead guilty. That plea relieved the government of the choice between allowing a fishing expedition into its intelligence files or dismissing the charges.

The first claim suggests the prosecutors will have to reveal all the information they’ve got against KSM. That’s a lie, one that presumably Professor Yoo knows is a lie. Eric Holder has made it quite clear that there is some set of evidence–much of it not public yet–that should be enough to prove KSM’s guilt, independent of all the information they collected pursuant to Yoo’s opinions authorizing torturing KSM.

And I highly doubt that Yoo’s really worried about revealing the details of other al Qaeda figures. We’ve already worked our way through about seven new generations of “al Qaeda Number Threes” since we captured KSM, so I doubt the network looks anything like it did when KSM had first-hand knowledge of it. Besides, if after eight years of waging full-scale war against al Qaeda we haven’t captured these people, then chances are we either won’t or can’t.

You know–can’t. Like Osama bin Laden.

Read more →

It’s Not Yoo, It’s the History

/47 Comments/in /by

If you had to guess the first several words that Miguel Estrada would use to argue that John Yoo should not be held accountable for his bad lawyering, what would those words be? (Answer below the fold.)

…

…

…

…

Read more →

Is John Rizzo Stalling?

/43 Comments/in /by

Boy, the press conference with Eric Holder today was jam-packed. In addition to using the Zazi arrest to push to renew the PATRIOT Act, Holder apparently updated reporters on the long-awaited OPR report.

The release of a long-awaited ethics report on the conduct of former Justice Department lawyers who authorized the use of harsh interrogation appears to be a ways off.

Attorney General Eric Holder said Tuesday the department is waiting for additional comments from “some of the lawyers who were involved.” The former Office of Legal Counsel lawyers under scrutiny already missed a May deadline for submitting their responses.

Speaking with reporters at Department of Justice headquarters in Washington, Holder said he expected the report to be cleared for release relatively soon. In June, he said the report, now more than four years in the making, would be ready in a “matter of weeks.”

The report explores whether legal advice in the interrogation memos, which have since been rescinded, met professional standards required of Justice Department lawyers. The Office of Professional Responsibility’s initial findings are said to be harshly critical of Jay Bybee, the former head of the Office of Legal Counsel, and John Yoo, a former deputy.

In spite of this report’s focus on Yoo and Bybee, I wonder whether they’re really the cause of the delay. After all, last we heard, the report was delayed not just because Yoo and Bradbury got a chance to review the document and work the ref, but because CIA got to review the document, even while John Rizzo, a key participant in the report, remained as Acting General Counsel at CIA.

In other words, "some of the lawyers who were involved" may not be limited to the OLC lawyers. John Rizzo was "involved" over a longer time and in as central a role as any of the OLC lawyers. He may have as much incentive as they do to delay the report.

DOJ’s DOD Advice for CIA

/41 Comments/in /by

I want to make another point about the Vaughn Index relating to OLC’s advice to the CIA. Document 13 and 14 (early March discussions between DOD and OLC on interrogation) have been referred to a third agency because–as DOD documents–it is not CIA’s place to decide whether to declassify them or not. Basically, DOJ is saying, "oops, these aren’t CIA documents, they’re DOD documents, so DOD needs to deal with this."

Fair enough.

But look at document 16. By date and length, we can say with some certainty that that document is the March 14, 2003 John Yoo memo for DOD (though note, the draft in the Vaughn Index is 80 pages, whereas the final is 81 pages).

DOJ does not say–as they do with the other DOD documents–that they have referred this to DOD for processing. Rather, they withhold it–with no consultation with DOD, apparently–by labeling it pre-decisional. Here’s how they describe it:

This is an 80-page draft OLC opinion to DOD consisting of draft advice regarding interrogations of alien unlawful combatants held outside the U.S., to include handwritten notations.

It appears that the reason they don’t have to refer this to DOD is because they’re withholding it for the deliberative value, and that comes–at least in part–from those hand-written notations.

Now, I find that interesting for two reasons.  First, look at Document 15. It’s a 2-page (plus fax cover sheet) memo, dated March 7, 2003, from CIA’s Office of General Counsel to OLC asking for legal advice on detainee interrogations. March 7 is the day after Khalid Sheikh Mohammed’s torture began in earnest, so it’s possible that memo pertains to KSM (though that’s just a guess). Let’s just say I find that timing interesting.

Then there’s the suggestion–based on the fact that DOJ has not referred this to DOD for processing–that the notations on the March 14 Yoo memo came from someone at CIA. Is it possible that War Council member John Rizzo was helping Yoo write the March 14 DOD memo?

The whole thing–particularly the inclusion of a number of DOD documents in a CIA-related Vaughn Index completed under Steven Bradbury–suggests that DOD was not only reverse engineering its torture for CIA, but CIA was returning the favor by providing advice to DOD as it developed its own torture regime.