Whose in Charge at the DOJ - The President or the Attorney General?

Michael Issikoff reported on the Rachel Maddow show tonight some really discouraging things about a meeting that Obama held today with Human Rights and Civil Liberties groups. I was especially dismayed to hear about Obama's hostility to any suggestion that there be legal accountability for torture. It was even more disturbing to hear that Obama and not AG Holder may be the one who is determining who to prosecute or NOT prosecute when it comes to torture. We already had political interference at the Justice Department during the Bush era, we don't need it to happen again in an Obama administration.

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Here are some other reports about the meeting:

Sam Stein at Huffington Post 

"In an interview with the Huffington Post, Massimino detailed what she described as a "lively and detailed and serious" discussion on some of the days most vexing national security issues. Over the course of roughly an hour and fifteen minutes, Obama, along with Chief of Staff Rahm Emanuel, Attorney General Eric Holder, advisers Valerie Jarrett and David Axelrod, foreign policy hand Dennis McDonough, and counter-terrorism chief John Brennan, held court with a group of academics, as well as officials with the ACLU, Human Rights Watch, and the Center for Constitutional Rights.

Asked whether the president had pacified some of the concerns she brought to the White House on Wednesday, Massimino said that she was pleased with the opportunity for engagement. Beyond that, she still registered concerns."I think that many of us were disappointed by the announcement about the military commissions and wondered what the reasoning was behind that. And to be honest, I am still wondering having been in this meeting today. I don't think that this fits the overall framework that the president had articulated about using our values to reinforce a counter terrorism strategy against al Qaeda."

From the AP Story

An official, speaking on condition of anonymity because the person was not authorized to disclose the decision, told The Associated Press the administration has decided to bring Ghailani to trial in New York. He was indicted there for the 1998 bombings of U.S. embassies in Africa _ attacks that killed 224 people, including 12 Americans. 

It was not immediately clear when the transfer would occur.Ghailani, a Tanzanian, was categorized as a high-value detainee by U.S. authorities after he was captured in Pakistan in 2004 and transferred to the detention center at the U.S. naval base in Cuba two years later.

This from CBS:

The meeting was supposed to be entirely off the record, but after White House Press Secretary Robert Gibbs vaguely mentioned it in his daily briefing, some attendees felt betrayed and then began to speak about it. 

The Weekly Standard Rubs It In

Obama Engages in Pre-Speech Placation of Human-Rights Groups

"So, um, guys..Really, I meant to call before now."

I imagine this meeting felt like the first post-break-up coffee with an embittered ex. It's Obama's unpleasant duty to lie to them, let them yell, and validate their feelings. It's their place to yell, feel momentarily assured, and walk away knowing deep down inside that he doesn't really care about them anymore. Oh, the angst! The melodrama! The cold, neglected, half-drunk latte that symbolizes the lost passion.

The Washington Post didn't have a stand alone story about the meeting but they did discuss it in this story:

Obama yesterday invited to the White House leaders of about a dozen human and civil rights organizations as well as law professors. Administration participants in the 90-minute session included Holder, White House Counsel Gregory B. Craig and Chief of Staff Rahm Emanuel.

Several participants discussed the meeting on the condition of anonymity. One said Obama argued that there was no trade-off between American values and national security, but that GOP demagoguery in Congress was dominating the issue. Another said Obama seemed irritated that some of those who attended the meeting had recently compared his policies to those of Bush.

Anthony D. Romero, head of the American Civil Liberties Union, who has used that comparison, declined to discuss what Obama said but in an interview after the meeting repeated the comparison.

"President Obama's decision to continue George Bush's policies essentially means that they become his own," Romero said. "And if he continues down this path, these policies will certainly become known in the history books as the Bush-Obama doctrine." Romero described the discussion as "freewheeling" and said Obama was "clearly deeply steeped in the issues. But he had little interest in revisiting his recent decisions."

The New York Times is also reporting on the meeting:

The two participants, outsiders who spoke on the condition of anonymity because the session was intended to be off the record, said they left the meeting dismayed. 

They said Mr. Obama told them he was thinking about “the long game” — how to establish a legal system that would endure for future presidents. He raised the issue of preventive detention himself, but made clear that he had not made a decision on it. Several senior White House officials did not respond to requests for comment on the outsiders’ accounts.

“He was almost ruminating over the need for statutory change to the laws so that we can deal with individuals who we can’t charge and detain,” one participant said. “We’ve known this is on the horizon for many years, but we were able to hold it off with George Bush. The idea that we might find ourselves fighting with the Obama administration over these powers is really stunning.”

The other participant said Mr. Obama did not seem to be thinking about preventive detention for terrorism suspects now held at Guantánamo Bay, but rather for those captured in the future, in settings other than a legitimate battlefield like Afghanistan. “The issue is,” the participant said, “What are the options left open to a future president?”

There was also this about Eric Holder in the Washington Independent:

In a keynote speech at the opening of the West Point Military Academy’s Center for the Rule of Law last night, Attorney General Eric Holder made a point of breaking with the Bush administration by affirming the United States’ commitment to international law and acknowledging that the United States has not always lived up to those legal commitments. But even as he extolled the the military officials who’ve stood up for the rule of law, he carefully avoided mentioning the controversial legal policies initiated by the Bush administration that his own Justice Department continues to support. And he failed to explain how the Obama administration can credibly claim to uphold the rule of law when it refuses to investigate the most egregious legal violations by its predecessor

Holder is now under great pressure to restore the law-abiding reputation that the United States lost during the Bush years. Whether he can do that will rest in part on how he responds to the Bush administration’s torture and abuse of detainees – all clear violations of domestic and international law. So far, he has skirted the issue, although he’s consistently claimed that “no one is above the law.”

One test will come Thursday, when the Department of Justice faces a court deadline to produce three controversial memos prepared by the Office of Legal Counsel under the Bush administration that reportedly provided legal justification for its harshest interrogation policies. If those legal justifications are flimsy, as is widely expected, they could serve as additional evidence of unethical and illegal conduct by the department. Previous OLC memos justifying extraordinary executive power, torture of prisoners and the suspension of the Bill of Rights during wartime have been harshly criticized, even by former Bush officials.

I don't usually read Maureen Dowd's column but the title of this one, Cheney Grabs a Third Term, intrigued me so I took a peek. How sad for all of us, Dowd is unfortunately spot on about Obama in her column and the reporting on the off the record meeting with Obama doesn't change that perception, sadly it only enhances it. I hope Dowd and the disappointing comments we're hearing about the meeting are wrong but I fear the worst.

“You’re running national security now and everyone knows it,” Rummy says. “You got Obama to do an about-face on the torture photos. He’s using our old line about how it would endanger the troops. He’s keeping our military tribunals. His Justice Department invoked our state secrets privilege to try to get that lawsuit on torture and rendition dismissed. He’s trying to stop any sort of truth commission, thank goodness. He’s got his own surge going in Afghanistan. He’s withdrawing from Iraq more slowly. He’s extended our secret incursions over the Afghan border into Pakistan.

”Dick smiles on one side of his face. “Transparency bites,” he snarls.

“By golly, yes,” Rummy says. “We controlled Junior by playing on his fear of looking like a wimp just as his dad did. And now we’re controlling Boy Wonder by playing on his eagerness to show that the Democrats are tough on national security. He’s a sucker for four-star generals, can’t resist anyone in uniform. Petraeus and Odierno speak and he jumps. If we want to roll him, we just send in the military brass flashing their medals.”

Update: Here is the Michael Issikoff piece from Newsweek.

Working the Refs

The Washington Post reported last night that according to two unnamed sources Bush administration officials were working behind the scenes to "soften" the ethics report about the lawyers who wrote the torture memos that the Justice Department's Office for Professional Accountability has been working on for the last five years. Putting aside the reliability and/or motive of the unnamed sources for a moment,  we know that during those five years there were Bush officials who worked to alter the report, or as the Post says in their current story,  "counterbalance" the report. 

In a separate effort to counterbalance the draft report, Attorney General Michael B. Mukasey and Deputy Attorney General Mark R. Filip wrote a 14-page letter before they left office this year. 

In addition to Mukasey and Filip getting a crack at this report, all three targets in the report, Steven Bradbury, John Yoo and Jay Bybee were also given the opportunity to make comments about the report before it was released, which is not in line with past DOJ practices. Normally an ethics report is released and then the subject of the report is able to appeal the decision.

Though Justice traditionally has allowed staffers to appeal OPR decisions, in this case, former Attorney General Michael Mukasey — a Bush appointee — allowed Bybee, Yoo and Bradbury to review a draft and comment before the report was finalized.

According to Sheldon Whitehouse and Dick Durbin,  even an outside agency like the CIA, has been given an opportunity to submit a comment about this supposedly internal inquiry.

“We will be interested in the scope of the ‘substantive comment’ the CIA is providing, and the reasons why an outside agency would have such comment on an internal disciplinary matter,” the duo said.

Even though the attorneys representing Bybee and Yoo (evidently Bradbury hasn't hired one yet) are not allowed to comment about this report in public due to a confidentiality agreement they signed, they most certainly have been able to at least verbally comment in private about this as yet unreleased report.

Miguel Estrada, an attorney for Yoo, said, "As a condition of permitting me to represent Professor Yoo in this matter, the Department of Justice required me to sign a confidentiality agreement. As a result of that agreement, there's nothing I can say."

Maureen Mahoney, an attorney for Bybee, also cited the confidentiality requirement in declining to comment.

There may also be others, who we don't know about yet, who were given the opportunity to influence this report over the years. But putting that aside, the number of people with a vested interest in the outcome of this report, who we already know were allowed to shape it's findings, are way too many people to make this an unbiased report. After all this is supposed to be an "ethics" report and letting so many people, with such obvious conflicts of interest work the refs, is in my view highly unethical.

The DOJ's Office of Professional Responsibility was originally created as the watchdog in charge of investigating DOJ misconduct because of the criminal role the Justice Department played in Watergate. But over the years they have become less of a watchdog and more and more of a tool for politically motivated Attorney Generals to use in order to downplay misconduct at the Justice Dept. If you really want to get to the bottom of DOJ misconduct you assign the investigation to the DOJ's Inspector General, but if you want to give the illusion of an investigation you give it to the OPR. 

George Stephanopoulos at ABC News reports:

This is the only outstanding Justice Department investigation into the Bush-era interrogation memos.  Attorney General Eric Holder has no plans (Stephanopoulos actually said "highly unlikely")  to open another investigation.  So, based on current facts, it is highly unlike that this will lead to any prosecutions.

So will the current Attorney General, Eric Holder, allow the OPR to white wash this investigation for the sake of political expediency or will he order an independent criminal investigation, free from the outside interference of those who have a stake in the outcome? How about it Mr. Attorney General? Does our current Justice Department support the rule of law or does it cave in to the rule of politics?

A brief comment about the unnamed sources used in the Post's story.

The Post states that their unnamed sources claimed that former Bush administration officials were lobbying to water down the ethics report. This information might be true but on the other hand, maybe this leak in the paper about Bush officials lobbying behind the scenes is total BS. Maybe Bush & Co. have decided to let the lawyers take the fall for them on torture and they're just putting out this smokescreen about lobbying on their behalf to keep the lawyers from turning on them? Or maybe the leak is from a current Justice Dept. official who wants to alert Americans that there are former Justice officials lobbying their old department to not only water down an ethics report but to lobby against criminal prosecutions and they want the public to push back? 

The point is that we just don't know what the reason is for this leak about back channel lobbying and that lack of knowledge makes a difference in how we understand the story.  The only thing that the Post  told us about these sources was that there were two of them. We don't know if they are former Bush officials, current Justice officials or maybe even Bybee and Yoo themselves. That's the trouble with newspapers who allow anonymous sources to remain so anonymous that they don't even bother to give the reader a basic understanding of their point of view so that we can make an intelligent decision about their motive for revealing information.

UPDATE:  TheraP posting in this thread at emptywheel made the observation that the media coverage on this subject has been misleading concerning what the OPR can and can't do.It is not up to the OPR to make a referral for prosecution, that would be the job of the Justice Dept. Inspector General.

Based on my reading (IANAL) of the Policies and Procedures of the Office of Professional Responsibility, OPR does not investigate crimes but instead investigates ONLY the:

professional ethics, competence or integrity of a Department attorney

If OPR does find “professional misconduct, it appears to have ONLY three options available as “penalties”:

Section 10. Formal Disciplinary Action (within DoJ itself)
Section 11. Referral of Findings of Professional Misconduct to Bar Disciplinary Authorities
Section 12. Public Disclosure of OPR Findings

The option of referral for prosecution does not appear to be available under OPR Policies and Procedures.

[Snip]

Thus, it would appear to me that media coverage of this issue has been misleading to an extreme. For I find no evidence that OPR itself can refer for prosecution.

It was a good comment and I'd encourage everyone to read the full comment at emptywheel

Update 2: Spencer Ackerman has a piece up at the Washington Independent that documents how former DOJ whistleblower Jesselyn Raddack's treatment by the OPR was very different from how the OPR treated Bybee, Yoo and Bradbury.