This morning, the Senate Judiciary Committee held a hearing entitled "What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration."
I suggest that a more apt title would be, "What Went Right?"
I am not testifying on the panel, but I will be submitting written testimony, which appears at the end.
UPDATE: I'm at the hearing and will be liveblogging below.
LIVEBLOGGING: (with assistance from David Swanson) Hearing starts at 10 a.m. ET
Written testimony of others not speaking has been distributed. The committee website does not seem to have testimony of speakers posted.
Leahy is whispering to Whitehouse prior to hearing.
10:01 Senator Whitehouse is chairing the subcommittee and opens by quoting Churchill on a "bodyguard of lies," quoting Cheney on waterboarding being a "dunk in the water," and Yoo on saying that waterboarding was only used three times. Whitehouse also cites torture contractors' profit motive. "Mukasey and Hayden owe military an apology."
Leahy is seated to Whitehouse's left, then Feinstein, then Durbin and one more Democrat. Not a single Republican committee member is present, a fact that speaks for itself.
10:04 Feingold here now between Feinstein and Durbin.
10:05 Republican Lindsay Graham here.
Whitehouse listing lies, "avalanche of falsehood." Whitehouse speaking up for prosecution, possibly eliminating the need for those of us who planned to to hold up signs. Medea Benjamin and one other Code Pink member are seated next to us. While this hearing will probably focus on torture as bad policy (and the Republican position: good policy), the fact that torture is a crime is already in the mix.
10:09 Senator Graham suggests this hearing is a "political stunt" (or possibly the nobility of law), but our "enemy" has no respect for any laws (so, presumably we shouldn't either). Graham says, "I'm calling today for any memos that show what was gained from any enhanced interrogation techniques." He defends that we're judging people who were scared. We're acting holier than thou at this greater distance from 9/11. Graham says he's a human rights lawyer [what??] and knows the difference between a policy decision and a crime. But then he goes on to talk about the horror of 9/11 for the third time, never mentioning the anti-torture act or the war crimes act.
10:12 Graham claims he disagrees with the policies, and mistakes were made, but interrogation techniques should be kept secret, which seems to contradict what he just said about releasing memos. If the Commander-in-Chief authorizes something outside the Army Field Manual, that's legal. (Ghost of Nixon hovering in the Dirksen Senate Office Building -- which is packed to standing-room only). Then he brings up Pelosi and claims she was breifed, proving nobody believed that they were committing crimes. (Graham does not mention that the briefings were in secret.) Graham also claims that we have higher priorities than dealing with enforcing laws. Graham says we damaged our reputation and made ourselves less safe, or would have, if we were to continue doing "things" we were doing. (Maybe he should tell Cheney to shush it.) Most astonishingly, he claims that between 2001-2006, the Geneva Conventions (which he describes as mere "warehousing instructions for POWs") were not applicable. He shames us for harshly judging those who made the tough decisions that we didn't have to make, but what we do in looking back may determine how we move forward (how horrible that would be, huh?), and let's not impede ourselves against an enemy that as he speaks is plotting to re-enter America.
10:19: Senator Leahy: this is one of most important hearings the Judiciary Committee will have this year. OLC wrote predetermined and premeditated legal opinions that authorized torture. That OLC so misused its authority is one of the fundamental breakdowns in the rule of law. Leahy describes the latest memos' horrors. Leahy cites American exceptionalism and hypocrisy: we would never permit these techniques against Americans. He cites the idea that the President is above the law, and says,
In this country no one is above the law.
Leahy still wants a "bipartisan commission." Two weeks ago, Leahy says, he invited Judge Jay Bybee to come testify. Leahy "wishes" he would. (Doesn't this committee have the power of subpoena and the power of inherent contempt?)
10:25 Senator Diane Feinstein, chair of the Senate Intelligence Committee disagrees with Graham that the Geneva Conventions do not apply. DOJ can and should review performance of employees, but this Committee has responsiblity of oversight. The Intelligence Committee is conducting a "major review" of CIA interrogations, including at black sites, including what information was produced and whether such information could have been obtained by other means, whether actions complied with or exceeded OLC opinions, and whether the Intelligence Committee was properly briefed (HOW ABOUT whether laws were violated???)
Feinstein points out that six senators are on both the Intelligence and Judiciary Committees. She doesn't want anyone (read: The Judiciary Committee) to make this "an explosive issue" without first reviewing millions of documents etc. (Why would something have to be done to turn systematic torture and the other crimes of aggressive war into an explosive issue?)
10:31 Senator Russ Feingold: The former Vice President is misleading the American people. Feingold says he has seen the memos Cheney is talking about and much besides, and nothing suggests any gain from the torture. Feingold wants our country to "return to the rule of law." He supports an "independent commission of inquiry as Senator Leahy has proposed." (No mention of a Special Counsel to prosecute. Why can Senators not join House members on this one?)
Chairman Whitehouse will preside.
By order of the Chairman
Updated Witness List
Hearing before the Senate Judiciary Committee,
Subcommittee on Administrative Oversight and the Courts
on
"What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration"
Wednesday, May 13, 2009
Dirksen Office Building Room 226
10:00 a.m.
Philip Zelikow
White Burkett Miller Professor of History
University of Virginia
Charlottesville, VA
Ali Soufan
CEO
The Soufan Group LLC
New York, NY
Professor David Luban
Professor of Law
Georgetown University Law Center
Hyattsville, Maryland
Professor Robert Turner
Associate Director
Center for National Security Law
University of Virginal School of Law
Charlottesville, Virginia
Professor Jeffrey Addicott
Center for Terrorism Law
St. Mary's University School of Law
San Antonio, Texas
10:33 First witness: David Luban from Georgetown University (full disclosure: a friend of mine (Jesselyn)). (Whitehouse says written testimony of witnesses is lengthy, but oral remarks will be kept to 5 minutes each.) Luban says lawyers' responsibility is to give legal advice even when unpalatable to the client, based on faithful execution of the law.
26 years ago, Luban says, Reagan's Justice Department convicted and sentenced four men for waterboarding (in the Lee case), which the appeals court consistently called "torture." This is the most relevant and easily found case, but the authors of the OLC memos either didn't find it or chose not to mention it.
The first Bybee memo claims the President can override criminal laws. Goldsmith said this had no foundation in any source of law. It comes very close to Nixon's statement, except that Nixon was speaking off the cuff, not in a formal opinion.
The use of the Medicare statute to redefine torture (as something amounting to organ failure or death) was so bizarre that the OLC itself disowned the memo a few months after it became public. Yoo and Bybee were looking for a frivolous argument to get them the results they wanted. Bradbury withdrew six additional opinions by Yoo and Bybee.
10:45 Five minute break to vote.
10:55 Zelikow agrees with Graham, says Americans of both parties believed we needed this, though we can now look back and judge it. He calls systemic government torture "a collective failure". (Speak for yourself, not me, not my friends, not Americans whose highest loyalty might not be to a political party or the University of Virginia.) Is this why you waited until now to speak out--because "we" were too scared and traumatized until now? He cites his friends Condi and John Bellinger.
Zelikow was upset that the OLC memos would have rendered the McCain amendment moot. (He does not mention that those very memos cite the fact that McCain's amendment would not have banned a single thing not already banned by U.S., the anti-torture statute and the war crimes statute, neither of which does Zelikow mention the existence of.)
Zelikow claims his memo has been found in the State Department and is being reviewed for release.
Medea Benjamin is holding up a "PROSECUTE TORTURE" sign.
David Swanson's says "Tortue Is Not a Bad Policy, It's a Crime."
11:05 Professor Jeffrey Addicott, Center for Terrorism Law -- a UVA alumnus, sadly. (He has to be instructed not to read 16 pages but to summarize.) He refers to the Convention Against Torture but not by its proper name, and does not refer to the anti-torture statute or the war crimes statute. He argues, incredibly, that waterboarding and other techniques in the memos did not constitute torture under international law (what about as actually engaged in, including to the point of death -- THERE ARE dead bodies, professor).
Like Cheney, he claims SERE training does the same thing to U.S> troops. (Yeah? With threat of death? 183 times? To the point of death?)
11:12 Professor Robert Turner, Associate Director, Center for National Security Law, University of Virginal School of Law, Charlottesville, Virginia (to the further shame of Wahoos everywhere). He opens by agreeing with Senator Graham's remarks.
He says he opposed the policies but believes torture authorizers meant well, and besides FDR locked up Japanese people so anything's allowed. He seriously, no joke, calls waterboarding "torture lite." (So, is it lightly illegal? Would it be heavier if the criminals had not been so frightened?)
11:19 Recess to clear cameras out before next witness enters who cannot be photographed. (Is he afraid of sympathizers with his interrogation victims or sympathizers with the policy of torture or something else? He has been undercover as an al Qaeda operative. He has been a witness in Guantanamo "trials". At least he's not from UVA, as Whitehouse himself notes.)
11:22 Ali Soufan, CEO, The Soufan Group LLC, New York, NY He speaks from behind a dark red screen. We cannot see him at all.
Soufan's disembodied voice says torture is ineffective and counterproductive. (He does not mention illegal).
11:25 Whitehouse interrupts to enter records of interrogations into the record, making them public for the first time. I don't know what's in them.
He refutes Graham's remarks about the Army Field Manual not being controlling. He says people are trained to resist torture but not to resist legal methods, what he calls "intelligent" methods, which he says he has had success with in the first hour--this compares with waiting 183 hours with an amateurish technique that plays into the enemies' handbook, taints sources, risks outcome, creates false confessions, and loses the moral highground.
Soufan does not advocate prosecution.
Hence my sign: "Torture is not a bad policy. It's a crime."
And yet he closes by saying that we should ensure that "these mistakes" are not repeated ever again. (HOW without deterrence?)
11:31 QUESTIONS AND ANSWERS: Whitehouse asks about the interrogation of Abu Zubaydah and learning actionable information, including identification of Kalid S. Mohammed as the 9/11 mastermind. Then torture produced nothing. Then another approach of legal intelligence methods produced identity of Jose Padilla. Then, once again, torture produces nothing. And once again Soufan's "intelligent intelligence team" was brought back in, but a "contractor" insisted on torture and Soufan protested "borderline torture." At that point, FBI Director Mueller asked team to cease participating. (This is an exchange between Whitehouse and Soufan, with Soufan affirming and adding to Whitehouse's points.) Soufan also confirms that Bush's public account of the interrogation was not in line with the facts.
11:37 Senator Lindsay Graham remains the lone Republican here, and in fact Whitehouse is the only Democrat still here. But the room is still packed with people standing in the back and people STILL waiting in the hallway to get in. Graham (channeling Cheney) claims, based on nothing, that OTHER interrogations using torture DID produce some good information. (Prove it, buddy. And then explain how you know legal methods couldn't have done the same. And then explain how you're justified in violating the law and how you deal with the recruting tool you've produced for terrorists and the ways you've weakend the State Department in now discouraging crimes by other nations.)
11:40 Graham asks Addicott to confirm that intelligence is central to this war, and he agrees and says that a police force could do the non-intelligence part of it. Graham then goes on to point out (admit) that other nations view terrorist acts as crimes rather than war. Graham intends this to avoid the Geneva Conventions, but he's also just delegitimized the invasion of Afghanistan without realizing it.
11:43 Whitehouse recounting contrast of results in Abu Zubaydah interrogations some more, comparing trained experienced FBI agents with amateurish contractors -- Whitehouse says FBI versus CIA is not the right comparison; in fact, CIA professionals were with Souffan and agreed with him at the field level as opposed to the private contractors. Souffan agrees and says the chief forensic psychologist for the CIA and their top interrogator agreed with him and opposed the torture, that the psychologist left even before Souffan did.
11:46 Durbin is back.
Souffan points out that KSM and Padilla were identified and captured before waterboarding was "authorized."
11:46 Whitehouse asks Luban whether the OLC memos mention private contractors. He says not that he recalls. Whitehouse agrees and thinks that's a serious omission.
11:48 Senator Dick Durbin to Zelikow: I was on the Intelligence Committee and frequently told information that I was told not to reveal or it might endanger someone's life. (I'm sorry, but allowing torture endangered people's lives?? And it looks like misprision of felony.) Durbin recounts Senator Rockefeller writing a letter in protest of the illegal spying and putting it in his file cabinet to create tangible evidence of his disapproval. (What Zeliklow claims to have done, too. But there are people in this room who have risked their careers, family life, and liberty to end these crimes, and none of them are members of Congress.)
11:54 Computer battery dying, but the hearing is coming to a close. We hope this gave you the gist.
*****
United States Senate Committee on the Judiciary
Subcommittee on Administrative Oversight and the Courts
"What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration"
May 13, 2009
Written Testimony for the Record
Jesselyn A. Radack
Homeland Security Director
Government Accountability Project
Thank you for including my testimony in the written record of today’s important hearing. I have direct, personal expertise on the subject of this hearing. I am a legal ethicist, recognized by the American Bar Association (ABA), who has served on the D.C. Bar Legal Ethics Committee and teaches professional responsibility. As the former Justice Department ethics advisor in the case of "American Taliban" John Walker Lindh, I blew the whistle when my advice to provide him counsel was disregarded and evidence of that advice "disappeared" in contravention of a federal court order. Among other retaliatory acts, the Department’s Office of Professional Responsibility (OPR) referred me to the state bars in which I am licensed as an attorney. Although the Maryland Bar dismissed the charges, the D.C. Bar investigation is still pending after more than five years.
I would like to speak first to the double-standard used by OPR in its investigation of the "torture memos" authored by John C. Yoo, Jay S. Bybee, Steven G. Bradbury and others while they worked in the Department’s Office of Legal Counsel, and second, to the actual ethics violations that they committed.
It is baffling to me that, as things stand now, I am the only Justice Department attorney-advisor that OPR has referred for criminal prosecution and for bar discipline stemming from advice I gave in a torture case—and my advice was to permit a U.S. citizen his rights.
OPR’s DOUBLE STANDARD
The much-awaited, long-delayed, and apparently altered OPR Report of Investigation on the torture memos appears to be on the verge of release.
According to its website, OPR’s mission is to
investigat[e] allegations of misconduct involving Department attorneys that relate to the exercise of their authority to . . . provide legal advice.
But there are a number of irregularities in how OPR has handled this investigation that should give pause to lawmakers, law enforcers and the public.
First of all, why has OPR taken nearly five years to complete its Report, when the memos at issue became public in June 2004? This inexplicable and inexcusable delay is unfair to the subjects of the investigation because the passage of time fades memories, and to the public because the consequences of any wrongdoing are diminished. For the two men for whom bar referrals are being contemplated, John Yoo now has tenure at Berkeley law school and Jay Bybee now has a lifetime appointment as a federal judge. Even if the worst case scenario ensues—disbarment—it is unlikely to affect their careers. One does not need a law license to teach law or be a judge.
Second, why did former Attorney General Michael Mukasey delay the release of the report, a draft of which was completed in November 2008? Apparently, Mukasey and his deputy, Mark Filip, wanted the report to include detailed responses from the subject attorneys. This is contrary to OPR’s own policies and procedures, which state that "an attorney alleged to have engaged in misconduct is interviewed" and given an opportunity "to review the interview transcript and to provide a supplemental written response and additional documents" as part of the investigation, not afterward. In fact, it is only if OPR wants to publicly disclose its findings that an affected attorney is given an opportunity to object, and then only on the grounds of privacy, not substance.
As the target of an OPR investigation, I was not allowed to vet the investigatory report. In fact, OPR admitted that it had not even begun to investigate the allegations against me at the time it referred me to the state bars in which I am licensed. Moreover, contrary to OPR’s own stated policies, it referred my case to the state bars in which I’m licensed absent a finding of professional misconduct, much less a finding of intentional misconduct or reckless disregard of an applicable standard or obligation—the benchmark that OPR uses. Instead, OPR referred me to the bar disciplinary authorities for "possible misconduct" based on a secret report to which I did not have access. To add insult to injury, I was referred for conduct I engaged in as a private citizen, not as a public servant, after I left the employ of the Justice Department.
I was never invited to comment on OPR’s report, much less allowed to see it, and the investigators never considered softening their findings based on my perspective. Nor was I ever advised of, or given an opportunity to submit, a written appeal of OPR’s findings. The post-investigative special treatment in this case is more than an anomaly. It’s a blatant double standard, one that the Obama administration inexplicably endorsed as "typical," "ordinary," and "historic." See Letters of May 4, 2009, to Senators Whitehouse and Durbin from Ronald Weich, Assistant Attorney General.
WHAT WENT WRONG AND THE ETHICS RULES THAT WERE BROKEN
What went wrong is simple. The Office of Legal Counsel (OLC) attorneys were acting as legal advocates instead of legal advisors.
The OLC, which writes legal opinions considered binding on federal agencies and departments and maintains a long tradition of dispensing objective legal advice to its client in executive-branch agencies, authored the so-called "torture memos," which advised the CIA and White House that using enhanced interrogation techniques on al Qaeda terrorists in captivity abroad "may be justified," and that only "serious physical injury, such as organ failure, impairment of bodily function, or even death" constitutes torture.
The torture memos purported to provide objective legal advice to government decision-makers, but their assertions about the state of the law were so inaccurate that they seem more to be justifications about what the authors (and the intended recipients) wanted the law to be, rather than assessments of what the law actually is.
Under the McDade Amendment, lawyers who work for the federal government are bound by not only their own state bar rules, but the bar rules of any state in which they practice. Additionally, under the choice-of-law provision in American Bar Association ("ABA") Model Rule ("Rule") 8.5, the ethics rules to be applied are the ones "in which the lawyer’s conduct occurred" or had its "predominant effect." Id. at Rule 8.5(b)(2). Therefore, although Yoo is licensed by Pennsylvania and Bybee in Nevada, all the attorneys were subject to the D.C. Rules of Professional Conduct because they practiced in D.C. when they worked for OLC.
Different ethics rules apply to the distinct functions of legal advisors and legal advocates. The lawyer-as-advocate is the more familiar role, in which the lawyer may make any legal argument as long as it is not frivolous. The lawyer need not give the court his honest assessment of how the law applies in the case. His only obligation of candor regarding legal arguments is that if his opponent fails to mention directly adverse controlling authority, he must bring it to the tribunal’s attention.
When a lawyer gives legal advice, however, he must comply with ABA Rule 2.1, which governs "Advisors." It states, in part, "In representing a client, a lawyer shall exercise independent professional judgment and render candid advice." Id. The OLC lawyers did not uphold their professional duty of candor toward their client. Their role was not to spin out creative legal arguments, but, as the first comment to the Rule explains, to give "straightforward advice expressing the lawyer’s honest assessment." Rule 2.1, Comment [1]. The commentary recognizes: "Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront . . . However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client." Id.
Similarly, ABA Rule 1.4, which governs "Communication," obligates the lawyer to "explain a matter to the extent reasonably necessary to permit the client to make informed decisions." Rule 1.4(b). The law was obviously not explained adequately to CIA operatives and others, who recently had to be granted blanket transactional (total) immunity from prosecution by the President of the United States. See Peter Baker & Scott Shane, Pressure Grows to Investigate Interrogations, Obama Assures C.I.A. It Won’t be Blamed, N.Y. TIMES, Apr. 21, 2009.
Part of the reason for OLC’s failure may have been that its lawyers did not understand who their client was. The OLC attorneys acted as if the President was their client when, in reality, the OLC lawyers had as their client the U.S. government, governed by ABA Model Rule 1.13, "Organization as Client," rather than any particular office-holder. When White House Counsel Alberto Gonzales requested the so-called "Bybee Memorandum" of August 1, 2002, Gonzales was not the client, but merely a constituent of the organizational client. Although lawyers must ordinarily accept the decisions made by such constituents, the commentary to the Rule makes clear that if "the lawyer knows that the organization may be substantially injured by tortuous or illegal conduct by a constituent member of an organization that reasonably might be imputed to the organization," then the legal ethics rules require lawyers to take action to prevent or mitigate that harm to entity clients. See ABA Rule 1.13, Comment [4].
Finally, the "catch-all" provision of Rule 8.4(c), which governs "Misconduct" involving dishonesty, fraud, deceit or misrepresentation, enables discipline in situations in which more specific rules do not apply or are inadequate, id., and would most certainly apply here.
If OPR wants to live up to its lofty mission of
ensuring that Department of Justice attorneys perform their duties in accordance with the high professional standards expected of the Nation’s principal law enforcement agency,
it can start with itself.