Last month, Associate Deputy Attorney General David Margolis cleared the names of former Department of Justice lawyers John Yoo and Jay Bybee. Disparagingly labeled the “Torture Lawyers” by the New York Times, Yoo and Bybee wrote the now-infamous memos offering legal advice to the Bush administration that authorized the use of enhanced interrogation techniques in questioning high-level terrorists. Overruling the Office of Professional Responsibility’s (OPR) finding of “professional misconduct,” Margolis found that Yoo and Bybee acted in good faith, ethically serving their clients in the Executive Branch in time of war.
This comes as no surprise, Heritage Foundation Senior Legal Fellow Hans von Spakovsky explains because the OPR’s investigation and report was a total sham and part of an ideological witch hunt. Indeed, “The OPR criticisms would be laughable if this were not so serious.” As just one example, OPR found Yoo and Bybee guilty of misconduct for not citing an unpublished Ninth Circuit opinion, even though the Court’s own rules forbid citations to unpublished opinions. A violation of this rule, von Spakovsky notes, “can subject a lawyer to sanctions for professional misconduct.” Furthermore, the OPR extensively cited Professor David Luban of Georgetown University as an expert to support their claim that Bybee and Yoo expounded “advanced novel legal theories” and “ignored relevant authority.” But “they failed to mention that their supposed expert isn’t even a lawyer,” von Spakovksy points out. Rather, Luban has a doctorate in philosophy, has never practiced law, and—pointing to the entirely political nature of the investigation—“is a longtime critic of the Bush administration.” The OPR also repeatedly claimed that Yoo and Bybee had violated the rules of the District of Columbia Bar, even though they were not members of that Bar and were not required to be as Justice Department lawyers. Von Spakovsky points out the irony of the OPR’s demonstrated “basic lack of competence—the exact charge by OPR against Mr. Yoo and Mr. Bybee.”
Most consequentially, however, is the OPR’s criticism of Yoo and Bybee for not “considering the moral implications” of enhanced interrogation techniques. Critics often censure the two for supposedly offering legal justification for torture, but Yoo and Bybee “were tasked with providing pure legal analysis—not moral and social critiques.” Indeed, such a flagrant injection of politics into legal matters reveals this investigation for the “malicious, partisan witch hunt” it was, making “what OPR did (and almost got away with doing) extremely perilous.” The extremely liberal OPR’s irresponsible conduct will undoubtedly make future Justice attorneys more hesitant to provide the “frank legal advice” the executive branch needs unless OPR’s incompetence is exposed more broadly.
Andrew Odell currently is a member of the Young Leaders Program at the Heritage Foundation. For more information on interning at Heritage, please visit: http://www.heritage.org/about/departments/ylp.cfm
On Friday of last week, following the announcement that Attorney General Eric Holder would appoint a prosecutor to re-investigate the CIA’s treatment of detainees, former Vice President Dick Cheney taped an interview with Fox News. During the interview, which aired yesterday on Fox News Sunday, Cheney describes Holder’s decision as an “outrageous political act” that will have “devastating” consequences within the CIA.
Cheney is dead on. But unfortunately Holder’s political CIA witch hunt is just the latest example of a troubling pattern of politicization of the Justice Department under Holder.
Voter Intimidation: On Election Day 2008, members of the New Black Panther Party dressed in military-style uniforms were filmed standing outside a polling place in Philadelphia. According to a complaint filed by career lawyers at the Justice Department, the New Black Panther Party violated section 11(b) of the Voting Rights Act by engaging “in coercion, threats, and intimidation” of voters, including “racial threats and racial insults” as well as brandishing “a deadly weapon.”
One of the defendants named was Jerry Jackson, a Democratic Committeeman of the 14th Ward in Philadelphia. The front-line career lawyers in the Voting Section of the Civil Rights Division recommended that Justice seek sanctions against the party and three of its members after the government had already won a default judgment in federal court against the men. But then Associate Attorney General Thomas Perrelli, the politically appointed No. 3 official in the Obama Justice Department, intervened. Instead of following through and getting an injunction to prevent this behavior in future elections, the suit was dismissed against all defendants, but Jackson, who received a watered-down injunction to prevent him from carrying a weapon in a polling place. But only in Philadelphia and only until 2012!
Public Corruption: In 2008, a federal grand jury began an investigation into a possible pay-to-play scheme in which lucrative work on New Mexico bond deals went to a Gov. Bill Richardson (D) donor. But then just last week, news leaked that that no one would be charged in the investigation with sources telling the Associated Press: “It’s over. There’s nothing. It was killed in Washington.” Heritage senior legal fellow Hans von Spakovsky explains why this is so troubling: “For anyone familiar with internal Justice Department procedures, this is particularly suspicious. The DOJ has a manual called “Federal Prosecution of Election Offenses” (I helped edit the latest edition when I was at Justice) that sets out the rules and procedures for U.S. attorneys when they are investigating these types of public-corruption cases. It is the U.S. attorney in New Mexico who would normally make the final call on a local public-corruption case, not ‘top Justice Department officials’ in Washington.”
Undermining National Security: In 2004 the CIA Inspector General issued a report documenting alleged detainee abuse by CIA interrogators and contractors. The DOJ’s career, not political, prosecutors then examined that document and other incidents from Iraq and Afghanistan for legal accountability. In one case, the DOJ decided to prosecute, and has already obtained a criminal conviction of a CIA contractor. Furthermore, the CIA has also taken their own disciplinary action against others involved in the incidents. As Heritage senior fellow Peter Brookes explains, Holder’s decision to re-investigate the CIA will have a chilling effect on the morale at the agency and will leave officers in the field wondering whether they should be more concerned about getting terrorists or getting lawyers.
Anyone familiar with Holder’s history should not be surprised by the politicization of the Justice Department under his leadership. In 1999, Holder promoted clemency for 16 members of FALN and Los Macheteros, terrorist organizations linked by the FBI to more than 130 bombings and six murders. Then in 2000 Holder played a prominent role in the pardon of Marc Rich, whose ex-wife gave considerable sums to the Democratic Party ($867,000) and the Clinton Library ($450,000).
Now, as the head of DOJ, Holder’s political decisions are undermining core rule of law concerns including the integrity of elections, ethical governance, and national security. Holder reports directly to his boss, President Barack Obama. Someone needs to be held accountable.
Quick Hits:
- According to Rasmussen Reports, 57% of Americans would vote to replace the entire Congress and start all over again.
- Public interest groups are concerned that the Obama administration is spending billions in stimulus dollars to expand high-speed Internet networks without first knowing where they are most needed.
- According to the Associated Press, politics, not need, is dictating how $720 million is spent for border upgrades.
- According to the National Association of Small Business Contractors, the Obama administration has repeatedly failed to meet its obligation to set aside 23 percent of its contracts to small businesses.
- More than $3.1 billion in stimulus money for state unemployment insurance programs is sitting in a federal trust fund because 23 states (only 11 under GOP control) have refused to change their unemployment system as dictated by Congress to qualify for the program.