Laurence H. Tribe (Harvard Law School)

Laurence H. Tribe, a Harvard Law School professor, will join the Justice Department next week as a senior counselor for the the Access to Justice initiative, two federal sources told The Washington Post. The new initiative is a response to concerns that the poor often have difficulties retaining counsel. (See Main Justice’s previous story on that issue here.)

Tribe, who would not comment on the appointment, has been a professor at Harvard since 1968 and has long been viewed as a potential Democratic Supreme Court nominee, according to The Post. The newspaper reports that he will take a leave of absence in order to join DOJ. Among his students at Harvard was President Barack Obama, who Tribe has called his most impressive student in his 30 years at the university, The Post reports.

In addition to his years as a professor, Tribe has extensive courtroom experience, serving as lead counsel in 35 cases before the Supreme Court. An expert on constitutional law, he also has been an expert witness in testimony before Congress on numerous occasions, The Post reports. Two years ago, the university reported that Tribe had been diagnosed with a benign brain tumor, from which he has since fully recovered, a source familiar with his health told the newspaper.

According to The Post, news of Tribe’s appointment has circulated in legal circles for weeks and raised some concerns about the role he might play in hot-button areas, such as national security and international issues. On Thursday, DOJ officials told The Post that Tribe would be focused on domestic affairs and would report to Associate Attorney General Tom Perrelli, also a Harvard Law School graduate.

PepsiCo Inc. announced Thursday that the Federal Trade Commission had cleared its deal to purchase two companies that bottle its drinks, on the condition that it seal off confidential information about its competitors to which the bottlers have access.

Pepsi will acquire Pepsi Bottling Group Inc. and PepsiAmericas Inc., but the bottlers also will handle work for Pepsi rival Dr. Pepper Snapple Group, Inc.

In order to clear regulatory hurdles, Pepsi said, it will set up a firewall so that Pepsi officials don’t have access to confidential information from Dr. Pepper.

Pepsi announced the $7.8 billion deal last August, but worked out details of the arrangement with the FTC before filing its formal paperwork earlier this year.

Pepsi previously had minority stakes in both bottlers, which together accounted for about three-quarters of Pepsi’s U.S. sales.

In December, Dr. Pepper agreed to give Pepsi a 20-year license to distribute and sell Dr. Pepper, Schweppes, and Crush for $900 million.

The FTC found that the license agreement would limit competition in certain soft-drink markets in the United States because it would eliminate direct competition between the two companies, and would increase the chance that Pepsi would unilaterally set Dr. Pepper’s prices.

The consent order that Pepsi agreed to would limit commercially sensitive information to employees at the company who are involved in “bottler functions,â€� and not to anyone involved in making Pepsi’s soft drink concentrates.

The proposed agreement also provides for someone to monitor the firewall and report to the FTC.

The FTC documents on the deal are available here.

The commission voted unanimously to approve the consent order, which is subject to a 30-day waiting period.

Just as FTC officials sign off on Pepsi’s deal, they are set to review a similar proposed deal from Coca-Cola. The company announced Thursday it would acquire its own bottling business in a deal valued at $13 billion.

updated to include the FTC documents at 11:40 a.m.

Statement Of Chairman Patrick Leahy (D-Vt.),
Hearing On The Office of Professional Responsibility Investigation
Into the Office of Legal Counsel Memoranda

Senate Committee On The Judiciary

February 26, 2010

As Prepared

It has now been more than a year since I first proposed the establishment of an independent, nonpartisan Commission to engage in a comprehensive inquiry to determine how the United States Government came to authorize torture.  Over one year ago, I called for a bipartisan effort to create a nonpartisan commission to conduct a needed comprehensive review.  I proposed to take these matters out of politics and find out exactly what happened so we can understand what went wrong and make sure it does not happen again.  My regret is that no Republican came forward in that spirit to join in that effort.  I said from the outset that without a bipartisan commitment to a fair, independent and comprehensive review it would not happen.  That is a shame.

Since that time we have seen more and more evidence of what went wrong during the last administration.  We have witnessed the release of more Office of Legal Counsel (OLC) memoranda documenting the authorization of brutal practices, an Inspectors General report that calls into question the guidance given by the Department of Justice, a CIA Inspector General report that reveals even those lax standards were violated during interrogations and last week, finally, the release of the results of the Office of Professional Responsibility (OPR) inquiry into the legal advice given by those at the Office of Legal Counsel.  All of these narrower reports point to why we need a comprehensive review.  None of them can answer the question of how the last administration veered so far off course and away from American values.

The OPR investigation was limited to determining whether or not legal profession rules were violated.  That is the business of bar associations.  It is, in my view, the wrong focus.  That office within the Justice Department does not have the power or authority to conduct the broader investigation that is still needed.  These legal memoranda were only a part of the problem.  They were intended to provide a “golden shield� to commit torture and get away with it.

As is now evident, even though the OPR investigation has consumed years, it is not complete.  The investigators were denied access to key witnesses and documents.  Did they interview David Addington, counsel to Vice President Cheney?  No.  According to Alberto Gonzales and Jack Goldsmith, he was a key figure.  Mr. Gonzales called him an “active player� in the drafting of these memoranda.  Did they have the full record of John Yoo’s communications with the White House?  No.  In fact, my first question to the Justice Department witness today will be, “Where are Mr. Yoo’s emails, which are required by law to be maintained?�

The fundamental question here is not whether these were shoddy legal memos.  They were.  The administration famously withdrew the Bybee memo written by Mr. Yoo in advance of the confirmation hearing on the nomination of Alberto Gonzales to be Attorney General.  Dean Koh called that memo “perhaps the most clearly legally erroneous opinion I have ever read.�  Jack Goldsmith called the memos “deeply flawed.�  David Margolis, the senior Justice Department attorney who provided the final review of the OPR report, did not endorse those memos. The legal work of Yoo, Bybee and Steven Bradbury, the acting head of OLC who reaffirmed the CIA interrogation program, was flawed.  It failed to cite significant case law and twisted the plain meaning of statutes.

These legal memoranda were designed to achieve an end.  That is not what the Office of Legal Counsel should do, nor had done in other administrations.  These Bush administration lawyers lost their way.

In my view President Bush was disserved.  These lawyers told the administration what Vice President Cheney wanted to hear.  Without question, our government institutions, the Justice Department and, in particular, the Office of Legal Counsel, were undermined.  The rule of law was disrespected.  Most importantly, the American people were harmed and put at greater security risk. The torture of individuals was not just a violation of our laws and treaties; it handed al Qaeda a propaganda tool to gain new recruits, and it made us less safe.

Just last weekend, General Petraeus said that “the use of the interrogation methods in the Army Field Manual� work, and that when we have “taken expedient measures, they have turned around and bitten us in the backside.�  He is right.  Colin Powell was right.  Alberto Mora was right.  The many JAG officers who fought these encroachments were right.

Focusing on whether these lawyers failed to meet legal ethics standards misses the fundamental point.  The real concern is that lawyers who were supposed to be giving independent advice regarding the rule of law and what it prohibits were instead focused on excusing what the Bush-Cheney administration wanted to do.  The OLC is charged to provide, both in times of war and peace, “candid, independent and principled advice — even when that advice may be inconsistent with the desires of policymakers.â€�  These lawyers abandoned their independent responsibilities to become apologists.

The role of the White House in the politicization of the OLC and in ensuring that these opinions delivered the legal immunity they were looking for has yet to be fully explored.  My sense is that such a review would reveal the same untoward and corrupting influence we found when we investigated the purging of United States Attorneys for political purposes.

As disturbing as the findings and evidence from this limited investigation are, they are not the final arbiter.  We need a true accounting and a comprehensive review.  The dark cloud that Patrick Fitzgerald talked about hanging over the Bush-Cheney administration at the end of the Libby trial is still there.  The politicization of the rule of law function at the Justice Department is another example of the last administration’s corruption of the government.  For the country to fully recover from this era we need to know what went wrong so that it does not happen again.  Unfortunately, the Obama administration’s attempts to repair this office and ensure that its lawyers are providing the government with principled advice have been hamstrung by Senate Republicans who continue to delay appointment of the President’s nominee to head the OLC.

I have been conducting oversight of these issues for years, because I was deeply concerned this country was treating people in our custody in a way that went against our laws and our values.  That is why I did not hesitate to issue subpoenas for these memoranda when the last administration refused to cooperate, and the release of those memos revealed how they were justifying torture.  I will continue that aggressive oversight.  I am determined to ensure that no future administration, of either political party, can ever justify torture.

# # # # #

On Friday morning, Main Justice provided live coverage of the Senate Judiciary hearing on the results of the Office of Professional Responsibilities report on the authors of the so-called “torture memos.”

Read our live coverage of the event below or see our post wrapping-up the event.

A former U.S. Attorney stepped down as New York Gov. David Paterson’s deputy secretary for public safety, citing a New York Times report that the governor may have inappropriately interceded in harassment allegations involving one of his aides.

Denise O'Donnell (gov)

Ex-U.S. Attorney Denise O’Donnell, who served in the Western District of New York from 1998 to 2001, said in a statement that communication by the governor and state police with a woman who requested a protective order against Paterson aide David Johnson, was “unacceptable regardless of their intent.”

The unnamed woman accused the aide of a brutal assault last year, The Times said. The woman said she was harassed to withdraw her case by the state police. An official from the governor’s personal security force also visited her, according to the newspaper. In addition, Paterson called her on the phone this month before a court hearing on her case, which was dismissed because she didn’t appear, The Times said.

O’Donnell said she was initially told that local police — not state police — were working on the case.

“It was only last night when I learned from press reports the contrary details, including the involvement of the State Police,” O’Donnell said in her statement. “For these reasons, I am resigning my position as Commissioner of the Division of Criminal Justice Services and Deputy Secretary of Public Safety effective today.”

Paterson has declined to comment on the alleged impropriety, which is being investigated by New York Attorney General Andrew Cuomo, according to Reuters. Johnson has been suspended, Reuters said.

O’Donnell is considering a possible run for New York attorney general this year, according to the NY Daily News.

The House today sent President Barack Obama legislation that would temporarily extend three Patriot Act provisions set to expire this Sunday.

The chamber voted 315-97 to keep in place the Patriot Act’s “lone wolf,� business records and “roving wiretap� powers until Feb. 28, 2011. The Senate approved the bill by voice vote last night. Obama is expected to sign the legislation into law.

House Judiciary Committee chairman John Conyers (D-Mich.) said the quickly-approaching expiration date for the authorities left the House “no other choice” but to renew the powers without any modifications.

“Please understand members that this extension is not the final word on the Patriot Act,” Conyers said on the House floor.

Both the House and Senate had begun work on long-term renewals, but the bills contained major differences.

The Senate Patriot Act bill would reauthorize all of the authorities. The House version would renew the records and “roving wiretap� powers but not the “lone wolf� authority, which the government has never used. The bills also would include new oversight for the authorities.

The Senate bill was approved by the Judiciary Committee last October and is awaiting floor action. The House bill, which won Judiciary Committee approval last November, is also awaiting floor action.

Here is a summary of the provisions that are due to expire:

• Lone wolf: Allows the government to track a target without any discernible affiliation to a foreign power, such as an international terrorist group. The provision applies only to non-U.S. persons. The government has never used it.
• Business records: Allows investigators to compel third parties, including financial services and travel and telephone companies, to provide them access to a suspect’s records without the suspect’s knowledge.
• Roving wiretaps: Allows the government to monitor phone lines or Internet accounts that a terrorism suspect may be using, regardless of whether others who are not suspects also regularly use them. The government must provide the FISA court with specific information showing the suspect is purposely switching means of communication to evade detection.

The former Eastern District of Arkansas prosecutor fired during the 2006 U.S. Attorney purge is the acting general counsel for the embattled vehicle service contract provider US Fidelis, the St. Louis Post-Dispatch’s The Savvy Consumer blog reported Wednesday.

Bud Cummins (DOJ)

Ex-U.S. Attorney Bud Cummins joined US Fidelis late last year to help the Missouri-based company fight off creditors and lawyers, which have taken aim at US Fidelis, according to the blog. The company had mass layoffs in December and January and will no longer sell service contracts. US Fidelis also lost its Wentzville headquarters last month at a foreclosure auction.

Cummins completed some work for US Fidelis last summer when the company employed his Little Rock, Ark., consulting firm, The Savvy Consumer said.

Former Eastern District of Missouri U.S. Attorney Catherine Hanaway, who served during the Bush administration, also worked for US Fidelis when her firm, the Ashcroft Group, was hired to audit the company, according to the blog. The audit was not completed and the Ashcroft Group no longer works for the company, The Savvy Consumer said.

Cummins was one of nine U.S. Attorneys forced out of office by President George W. Bush’s administration in 2006. He was replaced by former White House aide Tim Griffin, who led the U.S. Attorney’s office for a year. Griffin is now running for a House seat in Arkansas.

As Congress debates proposals to deny funding for civilian trials of the accused terrorists behind the Sept. 11 attacks, Attorney General Eric Holder and Secretary of Defense Robert Gates have written a letter to House Speaker Nancy Pelosi (D-Calif.) and House Minority Leader John Boehner (R-Ohio) saying that selecting the venue for the prosecution of terror suspects is a function of the executive branch.

“The exercise of prosecutorial discretion has always been and should remain an Executive branch function,” write Gates and Holder. “We believe it would be unwise and would set a dangerous precedent for Congress to restrict the discretion of our Departments to carry out specific terrorism prosecutions.”

“Indeed, we have been unable to identify any precedent in the history of our nation in which Congress has intervened in such a manner to prohibit the prosecution of particular persons or crimes,” write Holder and Gates.

The letter was reported by Adam Serwer of The American Prospect and is embedded below.

Gates-Holder Letter 022510

A leader of the Patriot movement said federal appeals court judge Jay Bybee once rejected him for a clerkship.

Stewart Rhodes, president of Oath Keepers, which critics have called part of a newly resurgent militia movement, told Main Justice he considered former Justice Department Office of Legal Counsel chief Bybee’s memos authorizing harsh interrogation techniques to be “dangerous.”

Oath Keepers President and Founder Stewart Rhodes (photo by Ryan J. Reilly).

“I disagree with him very strongly about some of the doctrines of detention and some of the things he wrote justifying torture, but in particular the stuff that he wrote and John Yoo wrote justifying applications of the laws of war even on American citizens. I find that very dangerous,” Rhodes said in an interview at the Conservative Political Action Conference last week.

The Yale Law School graduate suggested his views worked against him in his 2003 interview with Bybee, who sits on the 9th Circuit Court of Appeals. “Of course I didn’t get the clerkship, but I didn’t want it anyway,” Rhodes said.

The CPAC conference last week laid bare divisions between mainstream conservatives and what might be called the “Tea Party” conservatives, the libertarian-leaning movement against big government, public deficits and the perceived erosion of civil liberties.

To the left, Bybee has become a symbol of a right-wing ideologue willing to craft legal arguments to justify torture.

Rhodes isn’t far from that view. His group falls within the “Patriot” wing of the Tea Party movement, which emphasizes Second Amendment gun rights and the U.S. Constitution, and often takes positions so far to the right that they loop back around to the left.

A spokeswoman for Bybee’s office declined to comment on Rhodes or whether he applied for a clerkship, saying the office did not comment on personnel matters.

Oath Keepers describes itself as a non-partisan organization comprised of currently serving and retired military, Reserves, National Guard, peace officers and fire fighters who “will not to obey unconstitutional (and thus unlawful) and immoral orders, such as orders to disarm the American people or to place them under martial law.”

The Southern Poverty Law Center, a civil rights organization that tracks extremist organizations, described Oath Keepers as “a particularly worrisome example of the Patriot revival” in a 2009 report. Rhodes disputed the SPLC report and emphasized the orders that members of group will not obey are already part of the oath they take to uphold the Constitution.

Rhodes denied Oath Keepers is a militia. “We not a militia – we don’t train, and we’re not out in the woods or any of that stuff,” said Rhodes.

In the 1990s, the Patriot and militia movements were energized by incidents at Ruby Ridge, Idaho and Waco, Texas, that to them symbolized an oppressive federal government. In Ruby Ridge, federal agents shot at the family of Randy Weaver, who had white supremacist ties and was suspected of having a weapons cache. In Waco, agents stormed the compound of a religious sect called the Branch Davidians, leaving dozens dead.

Yet the Oath Keepers’ creed is similar to that of militia members. Among the orders Oath Keepers will not obey: “any order to blockade American cities, thus turning them into giant concentration camps” and “any order to force American citizens into any form of detention camps under any pretext.”

Before consenting to an interview, Rhodes pulled up the Main Justice Web site on his Blackberry and assessed it for political bias, saying he has been “burned” by reporters before. After agreeing to be interviewed, he asked an assistant to record the exchange, saying he did not want to be misquoted.

A former Army paratrooper, Rhodes said he worked for a year as a volunteer on the 2008 presidential campaign of Rep. Ron Paul (R-Texas), an Iraq war critic who garnered a near fanatical following and surprised pundits with the strength of his fundraising. (Paul also won a straw poll of activists at CPAC last week for the 2012 Republican presidential nomination.)

The 44-year-old Rhodes is a constitutional lawyer. He started Oath Keepers last spring. According to the magazine Mother Jones, Rhodes’ 2004 Yale Law School paper, “Solving the Puzzle of Enemy Combatant Status,” won the award for best paper on the Bill of Rights. He is now working on a book tentatively titled “We the Enemy: How Applying the Laws of War to the American People in the War on Terror Threatens to Destroy Our Constitutional Republic.”

Several federal law enforcement agents, including employees of the Department of Homeland Security, are members of the Oath Keepers, Rhodes told Main Justice. He said he was not sure whether any FBI agents were members of the organization and said he suspected the organization is under surveillance.

Rhodes dismisses the criticism of his organization as right wing. “I don’t care if it’s a person on the political left or a person on the political right, so called Democrats and Republicans left and right, I don’t care who they are, if they violate the constitution, I’m going to opposed it, and I always have. So I don’t understand, a lot of liberals nowadays say ‘Where were you guys during Bush?’ and I say well, I was over here writing about all these things,” citing his blog.

The Office of Professional Responsibility report on conduct of the authors of the so-called torture memos shows that the Justice Department’s internal ethics office is broken, according to panelists at a Wednesday forum hosted by the Alliance for Justice.

Panelists David Cole, a Georgetown law professor, Michael S. Frisch, ethics counsel to the Georgetown University Law Center, Scott Horton a lawyer and contributor to Harper’s magazine and Bill Yeomans, a fellow in law and government at American University’s Washington College of Law, all criticized the result of the investigation into the authors of the so-called “torture memos” that authorized harsh interrogation methods for use on terrorism suspects.

While OPR found in its investigation that Jay Bybee and John Yoo had been guilty of professional misconduct, that finding was overruled by David Margolis, a career employee serving as Associate Deputy Attorney General, the highest ranking non-political position in the Justice Department.

Michael S. Frisch, Scott Horton and Bill Yeomans at a panel on the OPR report on Thursday (photo by Ryan J. Reilly).

OPR is simply not independent, said Yeomans, who spent 23 years in the Civil Rights Division before leaving the department in 2005.

He said there is an ongoing battle within the Justice Department between OPR and the  department’s Inspector General.

Yeomans added that the report shows how broken the Justice Department’s internal ethics department has become. He said that OPR did not even obtain Yoo’s e-mails, saying that it believed they had been destroyed.

“Most of us have been trained to believe that e-mails never actually disappear, they are always somewhere,” said Yeomans. Without the e-mails, there is a “gaping hole in the investigation,” said Yeomans.

Cole said that the result of the report is that torture has became professionalized and regularized.

“We tortured people, we tortured many people, and we’re arguing about whether two lawyers should get bar discipline?” said Cole. He said discussion about the memos is greatly important, and that’s why the report “was released on a Friday night at 5 p.m.”

Horton said it was important to remember what the memos were really about.

“Is this really about ethics, or is this about crimes? The answer is very clear, it is about crimes,” said Horton. “Self regulation is a fraud,” Horton said of OPR. “This is not just a U.S. crime, it is a universal crime,” said Horton. The Bush White House and the CIA “wanted a get out of jail free card,” he said.

Video of the event is available on the Alliance for Justice Web site.