Former Deputy Attorney General David Ogden said he supported legislation governing long-term detention of suspected terrorists “in theory” but acknowledged political difficulties in enacting it.

David Ogden speaks at a Department of Justice event (Photo by Ryan J. Reilly / Main Justice).

“I think it makes sense as a matter of good government, in theory, to have with something of this magnitude a political consensus that would come out of legislation,” Ogden said Tuesday at American University Washington College of Law, his first public appearance since stepping down in February. He added that it “would be a desirable thing” to have a process, loaded on the executive branch rather than the courts, to guide the administration as suspected terrorists are scooped up around the world.

But he said that the possibility of a defective law gave him pause. And the politics would be tough with the diversity of views on the issue, said Ogden, now a partner at Wilmer Cutler Pickering Hale and Dorr LLP.

His remarks came on the same day The Washington Post reported that Sen. Lindsey Graham (R-S.C.) had submitted draft legislation to the White House that would develop a framework for handling terrorism suspects. The White House is urging Democrats to give the proposal serious consideration in hopes of striking a deal that would lead to the closure U.S. military prison at Guantanamo Bay, Cuba, and resolve other detainee-related issues.

A task force created by President Barack Obama on his second day of office recommended in January of this year that 50 of the nearly 200 detainees at Guantanamo Bay be held indefinitely. Until recently, the administration had not shown an interest in pursuing legislation that would change the current process of judicial review. Guantanamo detainees can challenge their confinement in federal court in Washington, but some judges on the court have asked for guidance from Congress, and thorny questions remain about indefinite detention and what process should be afforded to suspected terrorists held outside the United States.

On Tuesday, Ogden gave a speech on the restoring the Justice Department and was interviewed by American University law professor Daniel Marcus, a former Associate Attorney General in the Clinton administration who has been named as Ogden’s possible successor as DAG.

Marcus, who also served as general counsel to the 9/11 Commission, focused heavily on national security issues, at one point asking Ogden about a controversial ethics finding against the former Office of Legal Counsel lawyers who approved waterboarding and other interrogation methods. The Office of Professional Responsibility concluded that lawyers Jay Bybee, now a federal judge, and John Yoo, now a law professor, violated professional standards. A career official in Ogden’s former office, David Margolis, downgraded the finding of misconduct to “poor judgment.”

Ogden said the matter raised “big questions” about the role of the ethics office. ”I think there are real questions about the ability of…an ethics watchdog to really evaluate potential violations by an office like OLC, where the gist of the ethical allegations is that the opinion was so wrong that it couldn’t be in good faith,” he said. “This is really hifalutin stuff that these folks do. They’re the smartest — you hope anyway — they’re the smartest lawyers the government can find and put in that situation, and it’s tough to have other folks come in and look over their shoulder and say, ‘You know what, not only are you wrong, but you’re so outrageously wrong that I think you acted in bad faith’ — not to say that if someone did act in bad faith they shouldn’t be subject to discipline. It’s a really hard thing to do and a really hard thing to look at.”

While the five-year investigation and report-drafting process raised several novel issues, Ogden said, the decision to let Margolis have final say was in keeping with department precedent. Margolis, who as Associate Deputy Attorney General is the department’s senior career official, has overseen the ethics office since 1993.

“We took a look at this one, we thought about the question of whether for some reason we should deviate from that given the importance and profile of this,” Ogden said.

He concluded that ”it would be a mistake because, what happens if a political appointee, albeit one of unimpeachable good faith, reverses, disagrees with David Margolis, or agrees with him. Does that help anybody at all? It seems to me it doesn’t, particularly where that would be unusual.”

He added: “I’m a great believer… in normal process, and that’s what the normal process was.”

Watch David Ogden’s speech here.

Republican Sens. Sam Brownback and Pat Roberts said today they are blocking  ”key” nominees to the Justice and Defense departments, in light of press reports that the Obama administration is mulling a plan to house and try Guantanamo Bay detainees at the military penitentiary at Fort Leavenworth, Kan.

Sen. Sam Brownback (R-Kan.)

The senators did not specify which nominations they placed legislative holds on, and their offices did not immediately respond to requests for comment.  A spokeswoman for Roberts told CQ the list does not include U.S. attorney nominations or military promotions.

The administration is said to be considering  a court-room-within-a-prison complex. The plans would combine civilian and military detention facilities under one roof. The operation would be jointly run by the departments of the Defense, Homeland Security and Justice. Another possible site is the soon-to-be-shuttered state maximum security prison in Michigan.

Brownback, Roberts, and a raft of Republicans and Democrats have balked at the idea of transferring detainees to U.S. soil. Congress has vowed to withhold funding for the closure of Guantanamo Bay until the Obama administration provides more details of the undertaking.

Brownback and Roberts said they would hold up the nominees until the White House complied with a list of 11 requests, including a briefing by Defense Secretary Robert Gates, Attorney General Eric Holder, or other senior officials studying the detention issue. They also demanded analyses of the costs and economic impact of implementing the plan, a ”classified list and background” of every detainee considered for transfer to Fort Leavenworth, and a detailed explanation of where the administration would move the 430 military prisoners currently held at the penitentiary.

Sen. Pat Roberts (R-Kan.)

A Senate leadership aide told Main Justice yesterday that Senate leaders are still trying to reach a deal that would bring DOJ nominees up for votes before the recess.  There are four nominees to key Justice Department posts awaiting a vote:

• Dawn Johnsen, Office of Legal Counsel (Reported out of committee: March 19)
• Thomas Perez, Civil Rights Division (Reported out of committee: June 4)
• Mary Smith, Tax Division (Reported out of committee: June 11)
• Christopher Schroeder, Office of Legal Policy (Reported out of committee: July 28)

Apparently, they’ll be waiting a bit longer.

A Justice Department-led task force is planning to propose creating an inter-agency unit to handle interrogations of “high-value detainees,” The Wall Street Journal reported Saturday.

The unit would be tasked more with intelligence-gathering than building criminal cases and its members would be pulled from spy and law-enforcement agencies, according to The Journal. The unit would also review how interrogations are handled.

“One of the team’s tasks would likely be to devise a new set of interrogation methods, according to one person familiar with the proposal. Those techniques could be drawn from sources ranging from scientific studies to the psychology behind television ads.”

The interrogation policy task force — along with a similar task force reviewing detention policy and the shutting down of the facility at Guantanamo Bay — will miss a Tuesday deadline for reporting findings, news reports said. But at least some of the interrogation policy group’s findings will be sent to the White House by that date, the AP reported.

The Special Task Force on Interrogation and Transfer Policies is being led by J. Douglas Wilson, the Chief of the National Security Unit in the U.S. Attorney’s Office for the Northern District of California. He was appointed to the role by Attorney General Eric Holder in March. The task force was established under an executive order signed by President Barack Obama during his first week in office.

Generally, the creation of such a multi-agency team is supported within the administration, according to The Journal, but there is some disagreement over the details, such as which agency it should fall under or who should head it.

“There has to be a distance between me and the president,” now Attorney General Eric Holder said in his confirmation hearings. “I will be an independent attorney general and the people’s lawyer.”

That’s not the picture you got if you listened to Michael Isikoff’s interview on The Rachel Maddow Show last night, detailing an off-the-record meeting with leading human rights and civil liberties groups held in the White House yesterday.

Isikoff said that the meeting came on the heels of scathing criticism over President Obama’s announcement re-instating military commissions.  Fun fact: while Obama was listening to these activists complain about how he was allowing Bush policies to become his own, the Senate was voting to withold the funds to close Guantanamo Bay.  Bonus fun fact: Obama didn’t appreciate the Bush comparison, at all.

When the discussion turned to the proposed “truth commission,” Obama had an interesting explanation for why he was against it.  He said that all the Congressional investigations and the litigation that is going on are too distracting to his staff.  

He then turned to stare directly at Holder and once again noted that too much time was being taken up by this issue.

Someone raised the idea of a “trophy” criminal prosecution as a symbol, but Obama curtly dismissed it.

Isikoff says that Holder just sat and listened, not saying a word.  Not exactly the “independent attorney general” we were promised.

OR MAYBE… Holder just knew that this story would get out and figured he’d have more clout with Obama in future negotiations if he was portrayed in the media as letting Obama compromise his independence.  

Click here to read our earlier piece on Holder’s political maneuvering skills.

Also, you can watch Isikoff’s news-making interview in full below:

The main news today from FBI Director Robert Mueller’s testimony before the House Judiciary Committee today was his surprisingly candid assessment of the dangers to national security of housing ex-Gitmo al-Qaeda detainees in U.S. prisons. Mueller said he’s not afraid of any detainees breaking out. Rather, he fears that like drug gang members, the detainees could find ways in prison to keep in touch with terrorist networks. It was another blow to the Obama administration’s efforts to find a way to close Gitmo.

But that’s not what we found most interesting. It was this exchange between Mueller and Rep. Dan Lungren (R-Calif.) that raised our eyebrows, just a little:

LUNGREN: Does the name Lynne Stewart mean anything to you?

MUELLER: Yes.

LUNGREN: And Lynne Stewart is?

MUELLER: I believe she was involved with a radical group — I’m having trouble…

LUNGREN: Well, she was a defense attorney representing the blind sheik.

MUELLER: Ah, yes, that’s…

LUNGREN: And I believe she’s been convicted of federal offenses relating to being a conveyor of information from the blind sheik inside the prison setting to those outside.

Does that refresh your recollection?

MUELLER: Yes.

Oh, man. I know the FBI director has a lot on his plate. But how could he forget the furor over the 2002 arrest of the lefty civil rights lawyer for passing information from the “blind sheik” Omar Abdel Rahman, who helped run a precursor organization to al-Qaeda in Brooklyn, to his followers in the Middle East? That was a huge and controversial case. The blind sheik was convicted for plotting to blow up New York City landmarks, and evidence in the trial of the 1993 World Trade Center bombers linked his organization to that plot as well.

But then again, it took Mueller years and years to figure out why the FBI shouldn’t be hanging out with members of the Council on American-Islamic Relations.

Note to the Philadelphia Inquirer: please stop.  Stop trying to justify hiring the thoroughly discredited John Yoo as an opinion writer.

As you may remember, we reported earlier about the Bush-era Office of Legal Counsel deputy’s new job with the Inquirer and the paper’s defense that they just wanted to combat criticism that they were a “knee-jerk liberal publication.”  Over the weekend, Inquirer editorial page editor Harold Jackson decided to continue the defense of hiring Yoo, whose fringe legal reasoning justifying torture and unbridled White House power have caused a political uproar and have already been formally repudiated by Bush’s own administration.

 Jackson starts off his article expressing his displeasure with the blogosphere:

Paris. Yes, the one in France.

That’s the farthest point from which The Inquirer received e-mails protesting our contract with John Yoo to write a monthly column, which mostly centers on legal topics.

The hundreds of e-mails received are a testament to the power of the blogosphere, and of its superiority to newspapers in getting the word out about, well, about anything.

But I’ll save my whining about the murky future of my preferred vehicle of employment for a later date.

Jackson seems a little confused, the e-mails are not about the blogosphere’s “superiority… in getting the word out,” they are about the outrage caused by the Inquirer giving John Yoo a job as a columnist.

He then goes on to “set the record straight” and explain that no one tried to hide the fact that John Yoo had been hired as a columnist.  Newsflash, Harold: that’s not the source of the controversy.  The controversy is that a once highly-regarded newspaper just hired and gave a soapbox to someone who effectively legalized torture in what Georgetown Law Professor David Luban called “an ethical train wreck” at last Tuesday’s Senate Judiciary hearing.

You can read Will Bunch’s response to Jackson’s article here.  Bunch is the blogger to whom Jackson is referring when he says:

Unfortunately, most of the critics of our contract with Yoo have their facts wrong.

But that happens when your information comes from those bloggers who never let the facts get in the way when they’re trying to whip people into a frenzy to boost Web site hits.

It’s a shame that one blogger who disseminated poor information is actually a full-time journalist for a sister publication in The Inquirer building.

Stay classy, Harold.

In a Newsweek interview released over the weekend, President Barack Obama made an interesting statement regarding former Vice President Dick Cheney’s policies that, to our knowledge, has gone without much remark:

You know, Dick Cheney had a strong perspective about national security. It was tested in the early years of the Bush administration, and I think it resulted in a series of very bad decisions. I think what’s interesting is that, in some ways, Dick Cheney actually lost these arguments inside the Bush administration.

And so he may have won early with Colin Powell and Condi Rice, but over the last two or three years of the Bush administration, I think there was a recognition among Republicans and Bush administration officials that these enhanced interrogation techniques that were being applied—that they had applied early on—were potentially counterproductive; that a posture of never talking to our enemies, of unilateral action, of framing national security only in terms of the application of force, often unilateral—that that wasn’t producing.

And so it’s interesting to me to see the vice president spending so much time trying to vindicate himself and relitigate the last eight years when, as I said, I think, actually, a lot of these arguments were settled even before we took over the White House.

While the President has shown he wants to minimize his involvement in the debate over prosecution of former Bush officials, he’s clearly trying to influence the messaging. Cheney, of course, had mammoth bureaucratic battles with Powell, who left the administration after Bush’s first term and endorsed Obama for president shortly before the 2008 elections. Powell argues the GOP won’t be back in power until it moves closer to the center of public opinion. Cheney recently took a public shot at Powell, remarking: “I didn’t know he was still a Republican.”

Obama’s Newsweek interview comes on the heels of recent revelations made by Col. Lawrence Wilkerson. The former chief of staff to Powell at the State Department referred to Cheney as the “Sith Lord” on Steven Clemons’ blog and notes:

Third–and here comes the blistering fact–when Cheney claims that if President Obama stops “the Cheney method of interrogation and torture”, the nation will be in danger, he is perverting the facts once again. But in a very ironic way.

My investigations have revealed to me–vividly and clearly–that once the Abu Ghraib photographs were made public in the Spring of 2004, the CIA, its contractors, and everyone else involved in administering “the Cheney methods of interrogation”, simply shut down. Nada. Nothing. No torture or harsh techniques were employed by any U.S. interrogator. Period. People were too frightened by what might happen to them if they continued.

What I am saying is that no torture or harsh interrogation techniques were employed by any U.S. interrogator for the entire second term of Cheney-Bush, 2005-2009. So, if we are to believe the protestations of Dick Cheney, that Obama’s having shut down the “Cheney interrogation methods” will endanger the nation, what are we to say to Dick Cheney for having endangered the nation for the last four years of his vice presidency?

Likewise, what I have learned is that as the administration authorized harsh interrogation in April and May of 2002–well before the Justice Department had rendered any legal opinion–its principal priority for intelligence was not aimed at pre-empting another terrorist attack on the U.S. but discovering a smoking gun linking Iraq and al-Qa’ida.

So furious was this effort that on one particular detainee, even when the interrogation team had reported to Cheney’s office that their detainee “was compliant” (meaning the team recommended no more torture), the VP’s office ordered them to continue the enhanced methods. The detainee had not revealed any al-Qa’ida-Baghdad contacts yet. This ceased only after Ibn al-Shaykh al-Libi, under waterboarding in Egypt, “revealed” such contacts. Of course later we learned that al-Libi revealed these contacts only to get the torture to stop.

There in fact were no such contacts. (Incidentally, al-Libi just “committed suicide” in Libya. Interestingly, several U.S. lawyers working with tortured detainees were attempting to get the Libyan government to allow them to interview al-Libi….)

As the question surrounding prosecutions shifts to Cheney pushing for torture to vindicate his decision to invade Iraq, expect more dialogue about disagreements between Cheney and the rest of the Bush administration.

And just for kicks, on Saturday Night Live, Will Ferrell wishes Cheney would be more like Vice President Joe Biden, reveals Cheney’s most embarrassing secret, and why Cheney should get off Powell’s case:

On Sunday’s “This Week with George Stephanopoulos“, Sen. Jim Webb (D-Va.) reversed on praise he had given to President Obama for his decision to close Guantanamo Bay.  Webb is no longer a supporter of the timeline the President has set for closing the detention facility, saying “We should, at the right time, close Guantanamo.”  Webb also said that he would not be willing to accept any Chinese Uighurs in his state.  In making the case against the transfer of detainees to the United States, he said: 

We spend hundreds of millions of dollars building an appropriate facility with all security precautions in Guantanamo to try these cases.

…

These aren’t people who were in the United States, committing a crime in the United States.  These are people who were brought to Guantanamo for international terrorism.  I do not believe they should be tried in the United States.

Lakhdar Boumediene, an Algerian national who had been held at Guantanamo Bay since 2002, has been transferred to France.  He is the second detainee to be transferred out of the United States after review by the Guantanamo Review Task Force.  This comes on the heels of concerns voiced by many Congressmen that Guantanamo detainees may be released into the United States.  The issue also came up when Attorney General Eric Holder appeared before the House Judiciary Committee yesterday.

You can read the DOJ’s press release below:

Lakhdar Boumediene, an Algerian national who had been held at the Guantanamo Bay detention facility since 2002, has been transferred to France.

As directed by the President’s Jan. 22, 2009, Executive Order, the interagency Guantanamo Review Task Force conducted a comprehensive review of Boumediene’s case. As a result of that review, Boumediene was approved for transfer to France, which was carried out today pursuant to an arrangement between the United States and France.

Boumediene was involved in the Supreme Court case, Boumediene v. Bush, which in June 2008 established the writ of habeas corpus for detainees being held at Guantanamo Bay. In November 2008, a federal court ordered the U.S. government to take all necessary and appropriate steps to facilitate the release of Boumediene from Guantanamo Bay. He is the second Guantanamo Bay detainee to be transferred to a foreign country following consideration by the Guantanamo Review Task Force.

“As we continue to make progress with our review of detainees, the assistance of our international allies is critical to the closure of the detention facility at Guantanamo Bay,” said Matthew Olsen, Executive Director of the Guantanamo Review Task Force.  “We are extremely grateful to the French Government and the European Union for their assistance on the successful transfer of Lakhdar Boumediene and we commend the leadership they have demonstrated on this important issue.” 

Since 2002, approximately 540 detainees have departed Guantanamo for other countries including Albania, Algeria, Afghanistan, Australia, Bangladesh, Bahrain, Belgium, Denmark, Egypt, France, Great Britain, Iran, Iraq, Jordan, Kuwait, Libya, Maldives, Mauritania, Morocco, Pakistan, Russia, Saudi Arabia, Spain, Sweden, Sudan, Tajikistan, Turkey, Uganda, United Kingdom and Yemen.

President Obama will be announcing later today that he will keep the military commission system used by former President George W. Bush to try suspected terrorists.  The president will ask Congress to significantly expand the rights afforded to detainees.  Republican Sens. John McCain (Ariz.), John Warner (Va.), and Lindsey Graham (S.C.) proposed legislation in 2006 that could serve as a template for that expansion.  The proposal, among other things, banned evidence obtained through torture, established tough criteria for admitting hearsay evidence, and give detainees the ability to pick their own lawyers.  The president will request a 120-day delay in nine pending hearings before commissions so that they can change its policies and provide detainees due process.  Read the full NYT article here.