The U.S. Commission on Civil Rights did not receive a response from Attorney General Eric Holder on whether Justice Department employees will testify at their upcoming hearing on an alleged case of voter intimidation in Philadelphia on election day 2008, a spokeswoman told Main Justice.
On April 1, Commission Chairman Gerald A. Reynolds sent a letter to Attorney General Eric Holder asking for a response by April 12 on whether DOJ employees would appear before the commission on April 23. That hearing is part of the commission’s inquiry into an incident in November 2008 involving members of the New Black Panther Party. As of Wednesday afternoon, the commission had yet to receive a response, said spokeswoman Lenore Ostrowsky.
The commission also announced details about next week’s hearing. Those testifying include Rep. Frank Wolf (R-Va.); Philadelphia Republican poll watchers Bartle Bull, Mike Mauro and Chris Hill; and former Assistant Attorney General and Acting Associate Attorney General Gregory Katsas, now of Jones Day.
On Election Day in November 2008, two members of the New Black Panther Party dressed in military garb and stood outside a Philadelphia polling place. One of the men carried a nightstick, which some alleged was intended to intimidate voters. A career DOJ lawyer, who was allegedly hired during the Bush administration for his conservative background, pursued a voter intimidation case against the men and the New Black Panther party — the second time the Bush DOJ filed suit under Section 11 (b) of the Civil Rights Act, both times targeting black defendants.
After the Obama administration took office, another career lawyer appointed to acting head of the Civil Rights Division determined the case had no merit. The department dropped the case and obtained an injunction against the man with the nightstick. House Republicans cried foul, and the conservative-controlled U.S. Commission on Civil Rights took up the case.
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UPDATED Feb. 10: Hearing has been postponed due to weather conditions.
Gregory Katsas, former Assistant Attorney General in charge of the Civil Division in the Bush administration, will testify this week at a U.S. Commission on Civil Rights hearing on the Justice Department’s handling of a civil case against the New Black Panther Party.
Members of the group stood outside of a polling place in Philadelphia on Election Day in 2008, one of them holding a nightstick.
In the last days of the Bush administration, J. Christian Adams, a conservative career attorney hired by Bradley Schlozman, a high ranking Civil Rights Division official later found to have violated hiring rules by considering political affiliation in an internal DOJ report, brought a case against the New Black Panther Party, its president Malik Zulu Shabazz, and the two members who stood at the poll.
Months later, a career attorney, Loretta King, appointed to a temporary leadership position by the Obama administration, decided to drop the case against the party, Shabazz and one of the members who stood outside the polling place. DOJ obtained a temporary injunction against the member who held a nightstick.
Conservatives have cited the event as evidence of politicization in the Justice Department and alleged that the Obama administration is protecting the New Black Panther Party. Every witness scheduled to appear at Friday’s hearing is affiliated with the Republican Party.
The makeup of the commission has been called into question by some; four of the eight current members of the Civil Rights Commission are Republicans, two are Democrats and two are independents who switched their affiliation from Republican to independent. Months ago Michael Yaki, one of the commission’s two Democrats, complained, ”This is basically going to be a partisan kangaroo court, convened by my partisan colleagues.”
Adams, the career Civil Rights Division attorney who brought the case against the New Black Panther Party, is not set to testify. Adams, who served as a poll watcher for the George W. Bush campaign in 2004, previously argued through a lawyer that he had an obligation to testify despite instruction from the Justice Department to ignore the commission’s subpoena. DOJ would be responsible for enforcing the subpoena, but cited internal guidelines to prevent Adams from responding.
Katsas, who is set to testify, rejoined the law firm Jones Day in November. In his eight years at the department, Katsas represented the government in every federal circuit and the U.S. Supreme Court. He seemed to specialize in the controversial, arguing in cases concerning the detention of enemy combatants at Guantánamo Bay, Cuba, the use of national security letters in counterterrorism investigations, the applicability of the state secrets privilege, the closure of immigration hearings for suspected terrorists, and the constitutionality of federal statutes on topics ranging from the Pledge of Allegiance to partial-birth abortion.
Also set to appear at the U.S. Commission on Civil Rights hearing is Rep. Frank Wolf (R-Va.) who, ironically, was involved in an event that could well be construed as intimidation. Just a few days before the 2008 election, an 83-year-old Wolf staffer whacked an opponent’s videographer with a metal cane. As in the New Black Panther Party case, a video posted on YouTube became a primary driver of the media coverage of the event.
Chris Hill, an army veteran who runs the conservative group Gathering of Eagles which has clashed, sometimes violently, with anti-war protesters, will also appear at the hearing. He was interviewed by Fox News at the polling location in Philadelphia shortly after the incident.
In addition, Bartle Bull, a civil rights lawyer who supported John McCain in 2008 and was interviewed by Bill O’Reilly about the incident at the polling place, will speak at the hearing.
Just one of the three witnesses testifying about the facts of the Election Day incident has not yet spoken about it publicly – poll watcher Mike Mauro. He appeared in the background of the news footage but was not interviewed.
From the U.S. Commission on Civil Rights:
There are three fact witnesses who will testify at the hearing scheduled for February 12, 2010: Mike Mauro, Chris Hill, and Bartle Bull. Each of these individuals was a poll watcher affiliated with either the Republican Party or the McCain campaign.
Both Mr. Hill and Mr. Bull were interviewed by reporters. Their comments are reflected in the video excerpts provided. Mr. Mauro is also seen in the videos, but does not make any comments and was not interviewed. He is the young gentleman in the blue jacket seen off to the side in several of the videos taken at the property.
All of these witnesses will describe the actions and comments of members of the New Black Panther Party, as well as conservations they may have had with poll workers inside the voting facility.
In addition, the Commission will hear from Gregory Katsas, a former Department of Justice official, on the topics referenced in the attached letter.
Finally, Congressman Frank Wolf will be appearing before the Commission to discuss his concerns and efforts relating to this matter.
Joe Palazzolo contributed to this story, which has been updated since it was published.
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In deciding the fate of dozens of inmates at Guantanamo Bay, federal judges have been thrust into the position of crafting law that could end up governing U.S. detention of terror suspects around the world.
With so much at stake, Attorney General Eric Holder has relied heavily on the Justice Department unit that contemplates the executive branch’s thorniest legal questions, the Office of Legal Counsel, giving way to an unusual system where advisers are editing the work of the advocates.
OLC is enmeshed in more than 100 cases initiated by Guantanamo Bay detainees who are challenging their confinement in federal court in Washington. OLC lawyers review and revise virtually every brief filed in the cases, a break with tradition that has created some friction between the office and lawyers who defend the government’s positions in court, said several current and former Justice Department officials.
OLC acts as outside counsel for the president and the agencies, and its advice, often memorialized in opinions, is expected to represent the best reading of the law, but not necessarily the most popular. Rarely does the office concern itself with litigation, in part because it must be neutral to be effective, said one former OLC official.
“OLC is generally not an advocacy unit,” said Peter Shane, a law professor at Ohio State University and a former OLC lawyer during the Carter administration. “A large part of the office’s credibility has been based on the notion that it has kind of a quasi-adjudicative role.”
The office worked closely with the task force that recently completed a yearlong review of the Guantanamo Bay detainees. The task force determined that of the 198 detainees at the military-run prison, about 50 are unprosecutable but thought to be too dangerous to transfer, underscoring the importance of the habeas corpus cases — the chief means for testing the Obama administration’s detention regime.
The Supreme Court’s 2008 decision in Boumediene v. Bush recognized the right of Guantanamo Bay prisoners to challenge the legitimacy of their detention. But the high court left it to the lower courts to shape the proceedings, and the Obama administration has not asked Congress to intervene. (Interestingly, several judges overseeing the cases have spoken publicly about need for a guidance from Congress.)
Absent legislation, the habeas cases have become vehicles for hashing out questions about the scope of the government’s detention authority, the admissibility of evidence extracted through coercion, and the burden of proof required to hold prisoners indefinitely, among others.
Current and former officials said the cases play to talents of the OLC, jokingly referred to as “finishing school” for Supreme Court clerks, and they pointed out that several other Justice Department offices are involved in the effort.
The Civil Division’s Federal Programs Branch and Appellate Section, which have primary responsibility for the habeas cases, also collaborate with the offices of the Solicitor General, Associate Attorney General, Deputy Attorney General, and Attorney General, as well as the National Security Division.
“These cases present questions that have not been faced by the department or this administration previously,” said a senior Justice official.
In first months of the Obama administration, some legal experts questioned whether OLC was losing influence. They pointed to several signs.
The White House counsel’s office, for one, began in 2009 with about two dozen lawyers, a higher headcount than in OLC. The president, typically OLC’s biggest client, seemed to be building his own law firm.
Then, in April, a report emerged that the Attorney General had overridden OLC’s judgement that a District of Columbia voting rights bill, which Holder supports, was unconstitutional. The Attorney General went to the Solicitor General’s Office for a second opinion, and lawyers there told him they could defend the legislation if enacted.
It made OLC appear as if its advice were dispensable.
Complicating matters, the Obama administration has been unable to install a Senate-confirmed Assistant Attorney General in the office. Law professor Dawn Johnsen’s nomination has been held up in the Senate for nearly a year over Republican opposition to her vocal criticism of the Bush administration’s national security policies and her past work for an abortion rights group.
But far from ceding ground, the office has taken on new responsibilities, including guiding the Guantanamo Bay task force’s thinking on which detainees should be prosecuted, transferred or held indefinitely — and then seeing that its recommendations are executed in court.
Jones Day partner Gregory Katsas, a former Assistant Attorney General in the Civil Divison during the Bush administration, said that collaboration was typical of high-profile cases, but that the degree of OLC’s involvement was not.
“When we had the detainee cases, we would talk informally between the litigators and the counselors,” said Katsas, who was the Civil Chief when the Supreme Court decided Boumediene. ”We gave OLC drafts here and there, but the practice of having OLC set up as an overseer of the Civil Division on a regular basis is very new.”
OLC officials referred a reporter to the Justice Department’s Office of Public Affairs, which declined to give a statement.
The culture of the office differs vastly from that of the Civil Divison. OLC, with roughly 20 lawyers, provides advice to the government on complex legal and constitutional issues, interprets statutes and mediates legal disputes among agencies.
The Civil Division’s more than 750 lawyers represent the government in federal courts across the country, working closely with the Office of the Associate Attorney General, which oversees the division, and the Office of the Solicitor General, which signs off on all appeals. (The acting head of OLC, David Barron, was a constitutional law professor at Harvard Law School; Tony West, the Assistant Attorney General for the Civil Division, was a litigation partner at Morrison & Foerster in San Francisco.)
In the past, Justice Department offices consulted OLC on pending litigation, if, for example, separation of powers or other constitutional questions arose. But the office shied away from litigation strategy to avoid conflicts and because it lay beyond OLC’s bailiwick, said one former OLC lawyer, who served in the Bush administration.
OLC’s influence over Guantanamo Bay issues dates back to the Bush administration. The office worked closely with the National Security Division and the Pentagon on the military commissions.
In at least two cases — against Salim Hamdan, Osama bin Laden’s former driver, and Omar Ahmed Khadr, a Canadian citizen accused of killing an American soldier in Afghanistan — OLC lawyers made rare appearances before a military judge. In pretrial hearings, they argued matters related to the Geneva Conventions, the post-9/11 Authorization for Use of Military Force and the Military Commissions Act. After the issues were briefed and argued, the OLC lawyers faded into the background.
The office, which had enjoyed relative obscurity prior to the Sept. 11 attacks, came to symbolize the Bush administration’s controversial national security policies, having blessed waterboarding, warrantless wiretapping and extraordinary rendition. The office’s work exposed divisions among the Bush administration officials over the legality of the programs, prompting the resignations of senior Justice Department officials.
By the time Bush left office, several OLC opinions had been withdrawn, and the Justice Department’s Office of Professional Responsibility was years into an investigation of former OLC officials John Yoo and Jay Bybee.
OLC in the Obama administration has been more active in Guantanamo Bay matters. Barron and Martin Lederman, an OLC Deputy Assistant Attorney General, were part of Obama’s Justice Department transition team, and they were heavily involved in detainee issues before they were appointed to lead the office, said one lawyer who worked on the transition.
Lederman, like Johnsen, had been a fierce critic of the office’s work during the Bush administration, and his support for habeas rights and positions on indefinite detention were well-known within the department before he returned. (Lederman was an OLC lawyer during the Clinton administration.)
Views are mixed as to whether OLC should be so heavily invested in the Civil Division’s affairs. Some Civil Division attorneys told Main Justice OLC’s work was helpful, because of novel questions raised in the litigation, while others said it amounted to a cumbersome layer of oversight that has strained the relationship between lawyers in the two components.
In a new study, co-authors Benjamin Wittes and Rabea Benhalim of the Brookings Institution and Robert Chesney of the University of Texas Law School appeared to make an argument for OLC’s involvement in describing the significance of the cases:
They are more than a means to decide the fate of the individuals in question. They are also the vehicle for an unprecedented wartime law-making exercise with broad implications for the future. The law established in these cases will in all likelihood govern not merely the Guantánamo detentions themselves but any other detentions around the world over which American courts acquire habeas jurisdiction. What’s more, to the extent that these cases establish substantive and procedural rules governing the application of law-of-war detention powers in general, they could end up impacting detentions far beyond those immediately supervised by the federal courts. They might, in fact, impact superficially-unrelated military activities, such as the planning of operations, the selection of interrogation methods, or even the decision to target individuals with lethal force.
“I’m not sure OLC can be faulted,” said one Civil Division lawyer. “It’s all new. The executive has had to come up with a way of dealing with these cases on the fly.”
But disagreements over the application of the Obama administration’s detention standards, which were devised by OLC, have been a source of friction. (The new standards, introduced in a habeas case in March, dispensed with the Bush administration’s “enemy combatant” designation and declared that Obama’s power to detainee suspected terrorists indefinitely flowed from the 2001 Authorization for Use of Military Force, as informed by law-of-war principles.) Civil Division lawyers chafed at OLC’s insistence that they drop certain legal arguments or abandon their defense in habeas case, the lawyers said.
The Civil Division lawyer said some on the habeas team feel OLC should have withdrawn after crafting the new detention standards, “to be consulted only as need be on resolving some big-ticket items.”
The relationship has steadily improved since the early days of the Obama administration, before the task force charged with determining the fate of Guantanamo Bay detainees hit its stride, the lawyers said. Questions about the government’s position in each case were answered at the task-force level, leaving little room for argument.
“There was a lot more head-butting going on before the task force process got fully underway,” said another Civil Division lawyer. “Now it’s a matter of defending the cases the task force is willing to defend. It has made things go more smoothly.”
The task force, led by prosecutor Matthew Olsen, recommended 35 detainees for prosecution in federal or military courts; at least 110 for release, either immediately or eventually; and nearly 50 for detention without trial.
The habeas cases, however, continue to wind through the U.S. District Court for the District of Columbia. Of the 41 decided habeas cases, 32 of them cut in favor of the detainee.
That number, however, includes 17 Chinese Muslims, known as Uighurs, who were ordered released in the U.S. by a federal judge in 2008. While the Bush administration eventually dropped the Uighurs’ “enemy combatant” designation, meaning the habeas petitions went unchallenged, the Justice Department appealed the release order.
The issue — whether federal judges have the power to release in the U.S. detainees no longer deemed a threat — is before the Supreme Court. Arguments in the case, Kiyemba v. Obama, are scheduled for March 23.
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Gregory Katsas, former Assistant Attorney General of the Civil Division in the Bush administration, will rejoin Jones Day next month as a partner in the issues and appeals practice, the firm announced on Thursday. He is scheduled to start on Nov. 9.
In his eight years at the department, Katsas represented the government in every federal circuit and the U.S. Supreme Court. He seemed to specialize in the controversial, arguing in cases concerning the detention of enemy combatants at Guantanamo Bay, the use of national security letters in counterterrorism investigations, the applicability of the state secrets privilege, the closure of immigration hearings for suspected terrorists, and the constitutionality of federal statutes on topics ranging from the Pledge of Allegiance to partial-birth abortion.
Between 2001 and 2008, Katsas held numerous front office jobs at DOJ, including Deputy Assistant Attorney General, Principal Deputy Associate Attorney General and Acting Associate Attorney General. He was confirmed as Assistant Attorney General of the Civil Division in June 2008 — shortly after the Supreme Court issued its landmark opinion in Boumediene v. Bush, which granted Guantanamo Bay detainees the right to challenge their confinement in federal court. (Katsas argued the case before the U.S. Court of Appeals for the D.C. Circuit, a high point of his career, he said.)
The Court’s decision came down on June 12, the day Katsas returned from his honeymoon. At the time, he was leading the Civil Division in an acting capacity. Katsas was consumed with marshaling resources and assembling records to meet court deadlines in more than 200 habeas cases in the U.S. District Court for the District of Columbia. He and his team recruited dozens of lawyers from the Civil Division and various other corners of the Justice Department for the effort.
“In my eight years at DOJ, I don’t know of any other AAG who had to ask for a detail like that,” Katsas said in a telephone interview. “We had wonderful support from Attorney General Mukasey and Deputy Attorney General Filip, and we put together a great team very quickly.”
As of early September, federal district judges had ordered the release of 29 detainees and sided with the department seven times. About 50 government lawyers are defending the detentions in court.
Before joining the department, Katsas (Princeton, Harvard Law) was an issues and appeals partner at the firm, specialing in complex appellate and trial-court litigation. He was a law clerk to Judge Edward Becker of the U.S. Court of Appeals for the Third Circuit and to Justice Clarence Thomas.
“We are very pleased to have Greg back,” Mary Ellen Powers, partner-in-charge of Jones Day’s Washington office, said in a statement. “He was already a great lawyer, but the experience of running DOJ’s Civil Division obviously adds an extra dimension to his ability to help the firm’s clients in a wide variety of matters.”