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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The Justice Department Office of Legal Counsel is mulling a Bush-era memo that carved out an exemption for faith-based groups seeking government contracts, The Washington Post reported today.
The 2007 memo carved out an exemption in employment discrimination law that allows religious groups to receive federal money, even if they hire only members of their faith, according to The Post’s Carrie Johnson. A “legal source” told the newspaper the exception allowed DOJ to award $1.5 million to a Christian charity for a gang-prevention program.
President Obama promised on the campaign trail he would cut off government funds to groups that proselytized, or employed only members of their religion. President George W. Bush expanded government contracts to religious groups through the White House Office of Faith-Based and Neighborhood Partnerships, which was established in 2001.
“Before the Bush years, religious organizations that got money just assumed they had to hire the most qualified person and couldn’t proselytize,” Barry W. Lynn, executive director of Americans United for the Separation of Church and State, told The Post.
Lynn told the newspaper that he wrote a letter to Attorney General Eric Holder to ask for action. He said the letter “presents the golden opportunity to the Department of Justice to reverse clearly erroneous past policy and to start looking at a new, constitutionally based framework.”
A “Justice Department source” told The Post that the review of the 2007 memo is not on the OLC front burner. The office is focusing on more urgent legislative and national security right now, according to the Post’s source.
But that could change if OLC nominee Dawn Johnsen is confirmed by the Senate.
Johnsen, who has waited more than five months for the full Senate to move on her nomination, has expressed skepticism over the legality of the memo, according to The Post. Martin Lederman, an OLC deputy since January, also has his doubts about the memo, the newspaper said.
Obama’s OLC nominee has criticized many of the Bush-era OLC memos, including opinions that authorized the harsh interrogation methods for terrorism suspects.
She has written that the broad reading of presidential authority was “outlandish,” and the constitutional arguments were “shockingly flawed,” according to The New York Times.
Republicans have jumped on Johnsen for these remarks and have questioned her ability to lead OLC.
Read our previous report on Johnsen here.
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The New Republic profiles John Durham, the special prosecutor from Connecticut appointed by then-Attorney General Michael Mukasey to investigate the CIA’s destruction of videotapes documenting brutal interrogations of terrorism suspects.
After Attorney General Eric Holder was quoted in Newsweek earlier this month saying he was leaning towards appointing a prosecutor to investigate the Bush-era interrogations, this Washington Post story by Carrie Johnson named Durham as a possible choice for the job.
“Durham may be under consideration for an expanded mandate, given that he already has reviewed hundreds of sensitive CIA cables and other documents related to treatment of detainees.”
Read a more recent New York Times’s story about Holder’s deliberations here.
Quinnipiac law professor Jeffrey Meyer, a former colleague of Durham, told the New Republic: “Think of him as the second coming of Patrick Fitzgerald”– yet without the publicity hound aspect to him.
To us, the most interesting part of the profile is the unearthing of this blog post from a year and a half ago by Georgetown law professor Marty Lederman, a vocal critic of torture. Lederman is now a Deputy Assistant Attorney General in the Office of Legal Counsel, whose lawyers during the Bush administration produced the legal opinions authorizing torture.
Lederman was highly skeptical of Durham’s appointment, questioning his independence (Durham reports to the Deputy Attorney General in the CIA tapes matter):
But there’s nothing really “outside” about John Durham. He’s a career DOJ prosecutor, the number two official in the U.S. Attorney’s Office in Connecticut. As the Attorney General explained today (see statement below), the case would ordinarily be handled by the U.S. Attorney for the Eastern District of Virginia, but that U.S. Attorney requested that his office be recused from the matter “in order to avoid any possible appearance of a conflict with other matters handled by that office.” (Hmm . . . what might that mean? That the investigation deals with whether there was obstruction of justice in cases being prosecuted by the E.D. Va., perhaps?)
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The Obama administration has published 13 previously secret Bush-era legal memos by the Justice Department’s Office of Legal Counsel. But the Most Transparent Administration Ever has released just one OLC opinion of its own since President Obama took office more than five months ago.
What gives? This slow trickle of information appears at odds with the battle cries for transparency issued during the Bush years by law professors Martin Lederman and David Barron — now top Obama political appointees at the OLC — as well as Dawn Johnsen, the president’s choice to head the office whose nomination has been stalled in the Senate.
Johnsen, who spoke of the need for more transparency during her confirmation hearings, helped write a 2004 manifesto signed by Lederman, who is now the office’s deputy assistant attorney general, and Barron, the acting assistant attorney general. Also signing on was Lisa Brown, now the White House staff secretary; and Christopher Schroeder, nominated to head the DOJ’s Office of Legal Policy.
No. 6 on the list of “Principles to Guide the Office of Legal Counsel” declares, “OLC should publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure.” The memo continues:
In all events, OLC should in each administration consider the circumstances in which advice should be kept confidential, with a presumption in favor of publication, and publication policy and practice should not vary substantially from administration to administration. The values of transparency and accountability remain constant, as do any existing legitimate rationales for secret executive branch law.
So where are the opinions? We know from news reports and congressional hearings that the office has generated at least one big memo on the D.C. voting rights bill. (Attorney General Eric Holder reportedly disagreed with the OLC’s view that giving the District a vote in the House was unconstitutional, prompting him to seek advice elsewhere in the department.) And former OLC lawyers say DOJ’s “brain” is constantly mulling legal questions large and small from the White House and executive agencies.
The Washington Post reported last week that the OLC is refereeing a dispute between the Treasury Department and Neil Barofsky, the inspector general overseeing the $700 billion bailout of the financial industry. Treasury believes it has legal authority over Barofsky’s office; Barofsky says such an arrangement would threaten his independence as watchdog for the Troubled Asset Relief Program. OLC has been reviewing the matter since April.
There is typically a lag time for release of the opinions, but it’s difficult to measure it. The OLC Web site doesn’t give enough information to determine the average wait, and it varies with each administration. For instance, the Bush administration waited more than a year to publish a controversial opinion that it could bypass laws intended to prevent taxpayer money from going to religious groups that hire only staff members of the same faith. The opinion was issued in June 2007 and quietly released by the Bush administration on the OLC Web site last October.
Charles Cooper, of Cooper & Kirk, who was head of OLC from 1985 to 1988, said the office began systematically reviewing opinions for release during the Reagan administration. He said the office typically deferred to the client agency when deciding whether to make an opinion public. “But potential political embarassment was not a concern we yielded to,” Cooper said.
The Bush administration never released memos about the legality of harsh interrogation techniques, domestic military force and domestic surveillance. But those memos were the first that the Obama DOJ released after taking office. (Click here and here for links to the Bush memos.)
The Justice Department did not respond to a request for comment about the lack of published OLC opinions by the Obama administration.
The one opinion the office published, on May 20, dealt with the question of whether Obama’s appointment of then-Sen. Hillary Clinton to be Secretary of State violated the Constitution’s Ineligibility Clause because Congress authorized a pay raise for the post while she was serving her term. OLC ruled that a salary rollback for the post, which immediately preceded her appointment, achieved compliance with the clause.
The ruling reversed an opinion penned by Cooper in 1987. ”I’d very much like to see them release opinions in addition to the only one that reversed my opinion,” he joked.
Former OLC lawyer Neil Kinkopf, a professor at Georgia State University College of Law who served in the OLC during the Clinton administration, said in an interview that Johnsen’s problems in the Senate are likely hampering the office’s efforts to be transparent. Without a leader in place, it’s tricky for lower-level staff to make ”systemic decisions about what’s going to be the policy on publishing opinions or making ad hoc decisions about when to publish,” he said.
Kinkopf, who also signed the 2004 “principles” manifesto, said it’s probably too early for opinions on big-ticket items such as health-care reform and detainee issues. But he said the office has likely dealt with many routine matters, such as transition-related questions about appointing and removal powers (the Clinton opinion falls in the former category). “What you have is the administration formulating policy, so there might not yet be an occasion for an OLC opinion,” Kinkopft said. He added, “OLC is part of the policy process, too, so not having a head [of the office] can literally impede policy-making.”
Holder has indicated as much in congressional testimony. In May, he told members of the Senate Judiciary Committee that getting Johnsen confirmed was “probably my top priority,” as the department juggles reviews of interrogation and detention policies, and of the remaining detainees at Guantanamo Bay.