February 20, 2010

Devastating critique...

Andy McCarthy, on the malicious attack by the Justice Dept's Office of Professional Responsibility (OPR)

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

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

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

I'm posting the highlights below. Man, just read a few paragraphs. This has been a truly ugly persecution of good Americans.

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

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

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

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

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

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

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

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

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

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

The OPR faulted OLC for failing "to consider and address the moral and policy considerations triggered by the issues." Yet the precise job of OLC is to provide strict legal advice, shorn of policy and other considerations. Moreover, as Mukasey and Filip concluded, OPR's suggestion would run afoul of the D.C. Bar's ethical rules, which counsel that a lawyer is to provide technical legal advice when asked for purely technical legal advice – only where a client is "inexperienced in legal matters" should guidance go beyond "strictly legal considerations." Nothing in the profession of lawyering makes one expert in matters of morality and policy, and the point is to avoid a situation in which the lawyer's personal predilections are masqueraded as legal requirements.
Posted by John Weidner at February 20, 2010 8:55 AM
Weblog by John Weidner