The Obama administration has asked Justice Department lawyer Matthew Olsen to become the National Security Agency’s new general counsel, and he has accepted the post, Newsweek reported. An official familiar with the appointment told Newsweek that Olsen will not move into the position until security checks are completed, likely in a few weeks, but that no problems are expected given his past work with sensitive information.
Olsen served as executive director of the Guantanamo Review Task Force, which was headed by the Justice Department. Their work concluded in January, and their recommendations emerged late last month.
Earlier this year, he was appointed Associate Deputy Attorney General and put in charge of national security and criminal matters. Previously Olsen served as Deputy Assistant Attorney General for national security. He had worked as a lawyer in the U.S. Attorney’s office for the District of Columbia, and headed up that office’s national security section.
The Washington Independent reported that the the general counsel’s office has been vacant since the retirement of Vito Potenza last October.
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Lisa Monaco, a former federal prosecutor and chief of staff to FBI Director Robert Mueller III, has been named acting Principal Associate Deputy Attorney General, one of several moves in the management office following the recent departure of Deputy Attorney General David Ogden, the Justice Department said.
Monaco joined the DAG’s office in January 2009 as an Associate Deputy Attorney General with a focus on national security. She replaces Kathryn Ruemmler, who moved to the White House in December as deputy counsel to President Barack Obama. Donald Verrilli Jr., a veteran appellate attorney, also left ODAG last month to become senior counsel to Obama, a White House spokesman said. Verrilli was co-chair of Jenner & Block LLP’s appellate and Supreme Court practice before joining the department as an Associate Deputy Attorney General in February 2009.
Ogden stepped down as Deputy Attorney General, the department’s No. 2 position, in February after less than a year on the job. (He has since rejoined the law firm Wilmer Cutler Pickering Hale and Dorr LLP.) Officials said his resignation was prompted by disagreements between Ogden and Attorney General Eric Holder over management of the department.
Holder appointed Gary Grindler to replace Ogden in an acting capacity, though he has been mentioned as a potential nominee for the Deputy post. Grindler, a veteran of the Clinton administration, rejoined the Justice Department last year as a top official in the Criminal Division.
His new Chief of Staff (and Counselor) is Stacey Luck, who most recently served as Senior Counsel to Assistant Attorney General Lanny Breuer in the Criminal Division. Ogden’s Chief of Staff, Stuart Delery, has shifted into an Associate Deputy Attorney General slot, where he will concentrate on civil and appellate matters.
Matthew Olsen, the Executive Director of the Guantanamo Review Task Force and a former lawyer in the National Security Division, has been appointed Associate Deputy Attorney General and will handle national security and criminal matters.
Grindler said the new additions would round out an “outstanding team,” which includes career Associate Deputy Attorneys General David Margolis and Scott Schools.
“Their experience and vision will be instrumental in fulfilling the responsibilities of this office to advise and assist the Attorney General in implementing the Department’s policies and objectives,” Grindler said in a statement.
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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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Updated 9:56 a.m.
A task force charged with determining the fate of Guantanamo Bay prisoners has completed it work, heralding a new phase in efforts to resolve the status of prisoners in indefinite detention.
Created by President Barack Obama on his second day of office, the task force recommended that 50 of the 196 detainees at the military facility in Cuba be held indefinitely without trial, The Washington Post reports.
The task force deemed the detainees were too dangerous to release but could not be tried in federal court or military commissions because doing so could compromise intelligence-gathering methods and because detainees could challenge evidence obtained through coercion.
Their fate will now be decided by Obama’s National Security Council, an administration official said. Obama has said his authority to hold inmates indefinitely derives from Congress’ Authorization for Use of Military Force, passed in response to the Sept. 11, 2001 attacks.
The possibility that scores of detainees could be held on U.S. soil, indefinitely, is almost certain stoke tensions between the Obama administration and Congress over the closure of the military-run prison.
Obama has already drawn criticism from human-rights and civil liberties groups for even suggesting there are prisoners who cannot be tried for lack of evidence but who pose too great a threat to release. These groups are likely to bear down harder on the president as the NSC attempts to solve a problem the task force, which comprised officials from law enforcement and intelligence agencies, could not.
Though the Justice Department has not released an official tally, task force officials said in early January that of the 242 detainees imprisoned at Guantanamo at the start of the Obama administration, about 40 were referred for prosecution — among them, Khalid Sheikh Mohammed, the self-described mastermind of the Sept. 11, 2001, attacks — and roughly 130 were recommended for transfer.
Of the latter group, more than 40 have been repatriated or resettled in other countries. (In a BBC interview that aired last week, the director of the task force, Matthew Olsen, said more than 100 detainees had been approved for transfer and 40 had been set aside for possible prosecution.)
According to the Post, the task force has recommended that Guantanamo Bay detainees be divided into three groups:
about 35 who should be prosecuted in federal or military courts; at least 110 who can be released, either immediately or eventually; and the nearly 50 who must be detained without trial.
In the meantime, the men are challenging their confinement in federal district court.
There is also the separate problem of the roughly 40 Yemenis who are estimated to be already approved for transfer. The administration has halted transfers to their country in the wake of the Christmas Day bombing attempt.
Taken together, the men recommended for indefinite detention and the 40 Yemenis account for nearly half the detainees still at Guantanamo.
David Remes, a human rights lawyer in Washington who represents 15 Yemeni detainees at Guantanamo, called the figures “eye-popping.”
“You’re left with a scenario in which a majority of the men still at Guantanamo will remain there for the foreseeable future.Yet none of them have been accused of any crime, and many have been approved for transfer,” Remes said, adding, ”The irony is that President Bush was on target to close Guantanamo. Now that may never happen.”
President Obama and his aides have been able to address prolonged detention largely in the abstract, but with the task force’s work done and its recommendations made, the administration will have to confront more questions about the issue — and more criticism.
“Whatever the number is, it’s too high,” said Ben Wizner, a national security lawyer with the American Civil Liberties Union. “If anyone can’t be prosecuted under our over-broad material support law” that bars assisting terrorist groups in any way, ”then we don’t have enough evidence to hold them,” Wizner said.
David Maddox, a retired U.S. Army general who has advocated for civilian trials, said whittling down the remaining prisoners to zero would be a difficult task, particularly in cases where the government extracted evidence of guilt through harsh techniques or torture. (See: Retired Generals Hit Back At Critics of ‘Gitmo’ Closure.)
“At some point there has got to be a reasonable trade. Keeping that individual without any charges — no legal action taken against them — generates how many more terrorists versus how much can that individual do if he or she were released?” Maddox said. “But that’s the dilemma.”
But he said he was encouraged by remarks Holder made during a November meeting with Maddox and others.
“Not that we had any problem with the Attorney General at all, but he didn’t initially say that their objective was to get the number to zero, and we felt strongly that the longer we keep people with no charges indefinitely confined, it is not in our interest,” Maddox said. “He came back and said very clearly and said that was their goal too.”
Diplomatic and political problems forced Obama to abandon his Jan. 22 deadline for closing the prison. Foreign governments have been reluctant to accept Guantanamo Bay detainees, and many members of Congress oppose bringing them to the United States, citing security concerns.
The White House last month announced plans to retrofit a maximum-security prison in Northwest Illinois to receive “a limited number” of Guantanamo detainees.
Administration officials said the Thompson Correctional Center would be used to house detainees charged in military commissions, as well as detainees whom the NSC determined could not prosecuted in federal court or transferred into foreign custody.
But the plan has already encountered obstacles.
The Bureau of Prisons does not have enough money to pay for the center, and Congress declined to finance the project in the military spending bill for the 2010 fiscal year, likely delaying completion until 2011, at the earliest.
Moreover, administration officials acknowledged that the plan would require changes to a law forbidding the transfer detainees to the United States, except to face prosecution. Republicans have introduced legislation that would put further restrictions on detainee transfers.
The task force’s yearlong review was conducted by officials from agencies including the Defense Department, the Joint Chiefs of Staff, and Office of the Director of National Intelligence, as well as the Departments of State, Justice and Homeland Security.
More than 60 career prosecutors, agents, analysts and attorneys picked through detainee files. Detainee transfers required a unanimous decision by all agencies on the task force.
Newsweek reported in July that the task force had agreed the Obama administration should claim the right to hold on to Guantanamo Bay prisoners indefinitely, but there were divisions over the legal basis for holding detainees who are not charged with any crimes.
Below is an except from Obama’s May speech at the National Archives, addressing the issue of indefinite detention:
But I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.
For these reasons, any detainees at Guantanamo who continue to be held, and for whom no prosecution is planned, will be held only under authority granted by Congress in 2001 under the Authorization for Use of Military Force, as informed by the law of war. In addition, the Supreme Court ruled in Boumediene v. Bush, 128 S. Ct. 2229 (2008), that all detainees currently held at Guantanamo have the right to file petitions for habeas corpus to challenge their detention in Federal court. Detainees will continue to have that right when they are transferred to the United States.
Ryan Reilly contributed to this report.
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The Obama administration has tossed the term “enemy combatant” into the dustbin alongside John Yoo’s Office of Legal Counsel memos.
The policy change emerged in a Department of Justice legal memorandum filed today before U.S. District Judge John Bates in Washington, who is overseeing challenges from Guantanamo prisoners to their detentions.
Del Quentin Wilber and Carrie Johnson write in the Washington Post:
Though dropping the term “enemy combatant” will have little practical effect, it is a symbolic move by the Obama administration to break with the past.
President Bush used the term “enemy combatant” to assert broad executive powers to keep “war-on-terror” prisoners out of reach of the civilian courts or Congress. In dropping the phrase, the Obama DOJ rejected Bush’s expansive view of executive power. The new administration said it would rely on international law and Congress’s 2001 Authorization for the Use of Military Force against the Taliban and al-Qaeda to detain prisoners.
Yes. That’s right. The Obama administration continues to assert authority to hold the prisoners. But it said it would only detain those who had offered “substantial” support to Al-Qaeda, not those who were swept up by circumstances. Still, the end result isn’t much different from the Bush administration’s policy.
Today’s memorandum was filed by Michael F. Hertz, acting assistant attorney general; Joseph H. Hunt, director of the Federal Programs Branch of the DOJ Civil Divison; Terry M. Henry, assistant branch director; David J. Anderson, counselor to the assistant attorney general; and Paul Ahern and Christopher Hardee, attorneys in the Federal Programs Branch.
In a declaration accompanying the memo, Attorney General Eric Holder said the government is working to carry out Obama’s Executive Order 13492 to close the Guantanamo camp by next year. An inter-agency task force led by Matthew Olsen, former Acting Assistant Attorney General for the National Security Divison, is reviewing the case files of each of the more than 200 detainees still at the U.S.-run military base in Cuba.
Last month, the Obama DOJ upset human rights activists by agreeing with the Bush administration that detainees held at Bagram don’t have a constitutional right to challenge their detentions. The Supreme Court had previously ruled in Boumediene v. Bush that detainees at U.S.-controlled Guantanamo have habeas rights. The challenge by the Bagram prisoners is also before Judge Bates.
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Attorney General Eric Holder held an unannounced meeting at the Justice Department today with Defense Secretary Robert Gates, Secretary of State Hillary Clinton and other senior administration officials to discuss plans to shutter the Guantanamo Bay military prison by next January.
The meeting of the Guantanamo Bay Detainee Review Task Force also included FBI Director Robert Mueller, CIA Director Leon Panetta, Director of National Intelligence Dennis Blair, Chairman of the Joint Chiefs of Staff Adm. Mike Mullen, White House Counsel Gregory Craig, Department of Homeland Security Deputy Secretary Randy Beers and Justice Department national security division veteran Matthew Olsen, the executive director of the task force.
The officials also talked about the “standards for detainee reviews, factors that will be considered in prioritizing detainee reviews, and progress that has been achieved thus far,” according to a statement from the Justice Department.
According to an official familiar with the process, detainees are being grouped into categories, and government officials from multiple agencies are being grouped into teams assigned to examine particular categories of detainees.
The review teams would then make recommendations to the Guantanamo task force. The official spoke on condition of anonymity because the deliberations are private.
If a review team cannot reach a consensus on a particular detainee, the case will go to the Cabinet-level officials to reach a decision, the official said.
Holder, who visited Guantanamo Bay last month, told the Associated Press that he vowed to close the facility and handle the 240 people imprisoned there “in a way that ensures that people are treated fairly and that the American people are kept safe.”
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Residents in Northern Virginia may soon have new neighbors. Detailed dossiers on 241 Guantanamo detainees have recently been completed by federal authorities, opening the question as to where their next move may be as the military prison base shuts down. According to Justice officials, some detainees could be moved to prisons in and around Alexandria, Va., and New York City.
The possibility of characters such as Khalid Sheik Mohammed, member of the al-Qaeda organization and mastermind of the September 11 attacks, moving to local prisons is disquieting to politicians and residents alike. Although prisons in Northern Virginia have been rumored to be possible destinations for detainees, Virginia Gov. Timothy Kaine (D) told The Washington Post that he has not been approached with the issue of Guantanamo Bay detainees and that Republican politicians in Virginia were “jumping the gun” by vehemently opposing a federal decision that still has not been made. In addition, a Justice Department spokesman told The Washington Post:
At this time it’s far too early to speculate on which districts might involve such prosecutions, given that review is pending.
It’s also possible the Obama administration may create a new system of detention to deal with detainees deemed too dangerous to release, but against whom not enough admissiable evidence exits to prosecute them successfully in the courts.
For now, teams of eight to ten officials from the departments of Defense, State, Homeland Security, and Justice, as well as agencies such as the CIA and FBI will review the electronic files before making team recommendations on a case-by-case basis. These recommendations will then go to review at a board of senior officials from various departments.
Matthew G. Olsen is heading the Guantanamo Bay review task force at the Department of Justice.