Posts Tagged ‘torture memos’
Tuesday, May 11th, 2010

The Citizens for Responsibility and Ethics in Washington (CREW) filed a lawsuit against the Justice Department Tuesday related to missing e-mails from former DOJ official John Yoo, the author of the so-called “torture memos.”

John Yoo (file photo by Ryan J. Reilly / Main Justice).

Yoo served in the Office of Legal Counsel from 2001 to 2003. Earlier this year, the DOJ’s Office of Professional Responsibility cleared Yoo and fellow OLC lawyer Jay Bybee of any wrongdoing in connection with the memos, which authorized harsh interrogations of terrorism suspects. In the report, OPR investigators said they could not recover some of Yoo’s e-mails from the time the memos were written.

In February, CREW filed a Freedom of Information Act request with the DOJ asking for any information the OLC provided to employees on e-mail preservation. The group also filed a FOIA request in March asking for all e-mails sent to or received by Yoo.

According to CREW, the DOJ has so far only provided two documents related to the request.

“Given that millions of emails disappeared from Bush White House servers, no one should be surprised to find that emails disappeared from the Bush Justice Department as well. What’s violating federal records laws compared with avoiding accountability?” CREW’s Executive Director Melanie Sloan said in a statement. “The public deserves to know the truth behind the OLC torture memos and the Obama administration faces a choice: it can cover-up the Bush administration’s misdeeds or allow the truth to come out and help the country confront and move past this shameful episode.”

CREW is no stranger to lawsuits over FOIA requests. Last year, the group settled a lawsuit against the White House and the National Archives and Records Administration over missing e-mails from Bush administration White House staffers.

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Monday, March 29th, 2010

Former Justice Department Office of Legal Counsel official John Yoo told The Los Angeles Times in a report published Monday that he relishes being a conservative law professor in “the People’s Republic of Berkeley.”

John Yoo (Getty Images)

Yoo, who is a tenured professor at University of California, Berkeley, teaches a constitutional law course and seminar at the predominantly liberal university.  He has often been the target of protests around campus for his role in drafting the George W. Bush administration’s so-called “torture memos,” which authorized harsh interrogation methods against terrorism suspects.

“I think of myself as being West Berlin during the Cold War, a shining beacon of capitalism and democracy surrounded by a sea of Marxism,” Yoo told the newspaper.

A Justice Department report released last month cleared Yoo of any misconduct in authoring the memos. DOJ veteran David Margolis said in the report that Yoo only showed “poor judgment.”

Christopher Edley, the law school’s dean, has faced pressure from Yoo’s critics to fire the tenured professor ever since the memos were released last year. The dean dismissed the possibility of taking action against Yoo after the DOJ report was released last month.

“I hope these new developments will end the arguments about faculty sanctions, but we should and will continue to argue about what is right or wrong, legal or illegal, in combating terrorism. That’s why we are here,” Edley said in a statement, according to the L.A. Times.

Although Yoo told the newspaper he might be tempted to return to public service if a Republican becomes president, he said he likes working at a college campus and bringing a new perspective into the discussion.

“Then [my law students] can always say, ‘I’ve met a conservative.’ They can tell their family and friends,” Yoo told the L.A. Times.

Friday, March 19th, 2010

New York Democratic Rep. Jerrold Nadler plans to renew a push for legislation that would change the way the Justice Department handles allegations of misconduct.

New York Rep. Jerrold Nadler (D) will advocate for changes to internal DOJ investigations (photo by Ryan J. Reilly).

The measure championed by Nadler would allow the Office of the Inspector General the right of first refusal to investigate misconduct claims. Under the current structure, the Justice Department’s internal review board, the Office of Professional Responsibility, investigates all attorney misconduct allegations.

Supporters of the change say the Inspector General has much more autonomy given his unlimited term, greater resources and the fact that he reports to both Congress and the Attorney General, whereas OPR is much more susceptible to interference from political leaders.

Defenders of OPR, including Attorney General Eric Holder, counter that the specialized office is necessary because it has developed an expertise in applying complicated ethical and legal standards to DOJ employees and that allegations of misconduct, many of which are frivolous, should be handled out of the public realm.

Some members of Congress have tried and failed to give more power to the Inspector General before. The renewed interest is the result of a recent OPR investigation into the Bush administration’s interrogation policies. In a long-awaited report, OPR found that Bush-era Office of Legal Counsel lawyers Jay Bybee and John Yoo committed professional misconduct by authoring memos that approved the use of enhanced interrogation techniques. But that finding was overruled by David Margolis, a career employee serving as Associate Deputy Attorney General, the highest ranking non-political position in the Justice Department. In a memo overturning the finding, Margolis said he agreed that the authors’ work was slipshod and that they demonstrated “poor judgment” but not misconduct.

Nadler said the recent OPR report highlighted the need for change because of how easily a report can be overruled by just one man.

“I met with my staff … and said why don’t we introduce that bill?” Nadler told Main Justice.

Such a bill, Nadler’s staff told him, was actually quietly introduced by House Judiciary Committee Chairman John Conyers (D-Mich.) in October. HR 3847 was referred to the House Committee on Oversight and Reform on Oct. 20, and has sat there since. Now Nadler plans to make a new push. Nadler does not serve on the Oversight panel.

“We’re going to pursue that,” said Nadler.

Long Running Disagreement

The tussle between OPR and the Inspector General is not new.

The Inspector General’s office is an independent entity within the department that publishes public audits and reports on DOJ programs. Congress and the executive branch have limited oversight over the DOJ’s Inspector General; the head of the office is selected by the president and confirmed by the Senate, and can be removed only by the president himself. The office has the authority to issue subpoenas to compel testimony or documents for investigations, but it is specifically prohibited from investigating the department’s lawyers for misconduct related to their official duties.

Only OPR — which answers to the Justice Department’s political leaders — can investigate Justice attorneys or other DOJ employees for misconduct. OPR does not have the ability to issue subpoenas and the results of investigations are not usually made public.

Much of the office’s workload remains a mystery.

While OPR is required by law to provide an annual report, the last one available is from fiscal 2007. The report is scrubbed of any identities.

In 2007, OPR received 906 complaints. The office determined that 207 of the matters, about 23 percent, warranted further review. OPR opened full investigations in 71 of those; the remaining 136, which are called “inquiries,” were resolved with no findings of professional misconduct.

Of the 75 investigations that were closed in fiscal 2007 — some of which took the investigators more than a year to finish — OPR found professional misconduct in only 23.

The report gives little to no detail on the subject of investigations.

“The matters opened as inquiries during fiscal year 2007 were remarkably diverse,” the report states. “Many of those matters did not involve a complaint against a department attorney. For example, some inquiries were based on allegations of whistleblower retaliation made by FBI employees. Others involved abuse of prosecutive or investigative authority by agents or unauthorized leaks to the media.”

OPR’s Toughest Critics

Some of OPR’s biggest detractors are federal judges.

Judge Mark L. Wolf, the chief judge of the District of Massachusetts, was forced to let two mob figures out of prison in 2003 after discovering that a federal prosecutor never told defense attorneys that the star witness in the murder trial had recanted his testimony.

An OPR investigation found the prosecutor’s conduct reckless but not intentional, and the attorney was privately reprimanded by the Massachusetts U.S. Attorney. But Wolf did not learn of the OPR finding until two years later and was highly displeased with the result.

Wolf wrote to the state bar disciplinary counsel and publicly released a letter to then-Attorney General Alberto Gonzales.

“In my view, a mere secret written reprimand by the United States attorney would not ordinarily be a sufficient sanction for the serious, repeated and consequential misconduct,” Wolf wrote in the 2007 letter.

Judge Emmet Sullivan pushed for reforms after prosecution errors in the Sen. Ted Stevens case. (Dominic Bracco II)

In a more recent case, U.S. District Judge Emmet G. Sullivan decided to open his own investigation into the botched prosecution of former Sen. Ted Stevens (R-Alaska) rather than rely on an OPR investigation.

Stevens was accused of failing to disclose gifts he received on his Senate Ethics form. He was convicted in October 2008, but after the trial a FBI whistleblower and many others accused the prosecution of mishandling evidence. Holder moved to dismiss the case, concluding that prosecutors improperly withheld evidence favorable to Stevens.

At an April 2009 hearing voiding Stevens’ conviction, Sullivan called the prosecution’s mistakes the worst mishandling and misconduct he had seen in his 25 years on the bench. Although the Justice Department had opened an internal OPR investigation, Sullivan said it was not enough. He appointed attorney Henry F. Shuelke III as an independent prosecutor to look into the matter.

“The court looks forward to receiving the results of the OPR investigation whenever that investigation concludes,” Sullivan said at the hearing. “But the events and allegations in this case are too serious and too numerous to be left to an internal investigation that has no outside accountability.”

Holder Opposed Similar Bill

Efforts by Nadler or other lawmakers to press for enactment of Conyers’ bill will undoubtedly face opposition from the leadership of the Justice Department. A department spokeswoman declined to comment for this story.

Conyers’ legislation is similar to a 2007 measure introduced in the wake of the U.S. Attorney firing scandal.

That legislation, which dealt with inspectors general at all federal agencies, would have given Justice Department’s inspector general the authority to conduct legal ethics reviews.

But the legislation changed during Senate floor consideration, when the provision related to OPR was removed by Sen. Jon Kyl (R-Ariz.).

“I find it dubious that an OPR lawyer would be in any position to assess whether an Office of Legal Counsel opinion is legally correct or not,” said Kyl at the time. “I fear that OPR’s actions are influenced more by the toxic style of opposition attacks on the Justice Department in recent years, in which legitimate policy and legal disputes are recast as ethical lapses, rather than by a sound concern for the integrity of the Department.”

Kyl’s intervention came after the Justice Department and supporters from previous administrations raised objections to a stronger role for the Inspector General.

During the debate in 2007 on the inspector general legislation, Attorney General Eric Holder, then in private practice at Covington & Burling, wrote Sen. Joe Lieberman, one of the bill’s co-sponsors, in support of OPR. (A copy of the letter is embedded below.)

Holder closeup

Attorney General Eric Holder (photo by Ryan J. Reilly).

“I believe strongly that, far from curing the problems now under investigation, authorizing an IG to investigate the sensitive issues historically investigated by OPR would create additional opportunities for improper political concerns to influence law enforcement decisions,” Holder wrote.

“OPR has been recognized consistently as a strong, independent entity within the Department since its creation in 1975,” he continued. “Over the years, Attorneys General of both parties have considered proposal that OPR’s jurisdiction be given to the OIG, and have concluded that allegations OPR investigates, such as exercise of prosecutive discretion and legal judgment, should remain the mission of a dedicated staff of specialists responsible directly to the Attorney General.”

Margolis, who has overseen OPR as part of his role in the Deputy Attorney General’s office, is one of OPR’s biggest supporters.

In 2000, he testified along with other department officials that a bill to change the way misconduct cases were handled would be “profoundly unwise” and potentially unconstitutional. In his testimony he noted that OPR was subject to the “general supervision” of the Attorney General, and noted that the Attorney General has the final say regarding the release of information about the results of investigations.

After years of promoting the independence of OPR attorneys, his memo on the Bybee-Yoo report highlights what critics say is its major flaw — that it takes just one person to overrule OPR’s findings.

Inspectors General Want Change

Glenn A. Fine

Justice Department Inspector General Glenn A. Fine (photo by Ryan J. Reilly).

There are several people within the DOJ who support a stronger role for the Office of the Inspector General, including the inspector general himself.

Inspector General Glenn Fine declined to comment directly on the recent OPR report, but said that his views about the need for an independent inspector general are very public.

“I think this should be a bipartisan issue, and it’s something we have talked about for awhile. My views on this are well known. We’ll see what happens,” Fine told Main Justice last month. “I expect that when I’m asked about this, I’ll continue to state my position on this.”

The previous Inspector General agrees.

“The existence of OPR gives the Attorney General more control over internal investigations because it reports solely to the AG; by contrast, the Inspector General reports jointly to both the Attorney General and to Congress. In theory and in fact, the AG controls the OIG far less than he controls OPR,” said Michael Bromwich, who served as Inspector General during most of the Clinton administration and is now a partner at Fried Frank.

When he took on the role, Bromwich was promised that the Office of the Inspector General would absorb the Office of Professional Responsibility. That transition never happened because of internal opposition.

For 22 years Michael E. Shaheen served as chief counsel in the Office of Professional Responsibility, investigating big cases across the department including cases that took on the FBI and even the attorney general.

Shaheen, wrote Jim McGee and Brian Duffy in their book “Main Justice,” gained the reputation of a dragon slayer, and kept his independence because of his allies on Capitol Hill, including now-Vice President Joe Biden during his stint as chairman of the Senate Judiciary Committee and his Republican successor, Orrin Hatch of Utah.

So it was surprising when in 2007 Shaheen called for his former office to be abolished, telling NPR its functions should be merged with the Office of the Inspector General.

It pained him to say so, he said, but the Office of Professional Responsibility has been “plagued by a history of delays and bureaucratic layers imposed on it,” he said.

Shaheen died that same year. But Bromwich said Shaheen’s comments on OPR after so many years leading the office “sent a pretty powerful statement” about the need for change.

Joe Palazzolo and Leah Nylen contributed to this story.

Holder Letter

Thursday, March 4th, 2010

Three Democratic House members at an event Wednesday evening read selections from the so-called “torture memos” and accounts by some of the prisoners and witnesses who alleged that torture took place in the Guantanamo Bay prison.

Rep. Bobby Scott (D-Va.) and Rep. Keith Ellison (D-Minn.) read documents related to the alleged torture of prisoners at Guantanamo (photo by Ryan J. Reilly).

Reps. John Conyers (D-Mich.), Robert C. “Bobby” Scott (D-Va.) and Keith Ellison (D.-Minn.)  all took turns in the dramatic reading of government documents related to the alleged torture of detainees.

Wednesday night’s event, “Reckoning with Torture: Memos and Testimonies from the ‘War on Terror’,” took place at Georgetown University Law Center and was sponsored by the American Civil Liberties Union, PEN American Center and Georgetown Law’s Human Rights Institute and the Center on National Security and the Law.

Other participants included The Daily Show correspondent Aasif Mandvi, author Matthew Alexander, former CIA special agent Jack Rice and several ACLU lawyers.

Video shot by Main Justice is embedded below, followed by several photos from the event.


House Judiciary Committee Chairman John Conyers (D-Mich.)

Matthew Alexander

Author Matthew Alexander

Aasif Mandvi

Daily Show Correspondent Aasif Mandvi


Reps. Robert C. Scott (D-Va.) and Keith Ellison (D-Minn.)

Monday, March 1st, 2010

Former Justice Department Office of Legal Counsel lawyer John Yoo said in a column in Sunday’s Philadelphia Inquirer that he didn’t know why the DOJ’s Office of Professional Responsibility couldn’t find e-mails he exchanged with a colleague during the period in which Yoo was working on memos detailing the legal basis for interrogating terrorism detainees.

John Yoo (Berkeley)

Acting Deputy Attorney General Gary Grindler told members of the Senate Judiciary Committee Friday that the DOJ is trying to retrieve the Yoo e-mails, which could not be recovered during the OPR investigation of potential misconduct by Yoo in the authorization of harsh interrogation methods for terrorism suspects. Yoo, who served in the OLC from 2001 to 2003, was recently cleared of misconduct stemming from the “torture” memos.

“During my interviews, OPR lawyers showed me several printouts of my e-mails,” Yoo wrote. “If they need more they should look in the files of the other lawyers on the network.”

He added that there couldn’t be any e-mails discussing interrogation methods to his ex-colleague, former OLC lawyer Patrick Philbin, because the Justice Department’s e-mail system is unclassified and could not be used to discuss interrogation techniques, which were “classified at the highest levels of secrecy.”

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) chastised Grindler on Friday for the missing e-mails. He said their disappearance raised “serious concerns” about government transparency.

Grindler said the OPR report on the authorization of the harsh interrogation methods does “not suggest that there was anything nefarious” about deletion of e-mails. But the National Archives sent a letter to the DOJ on Wednesday asking it to investigate “possible unauthorized destruction of e-mail and other records” in OLC.

Yoo said in his op-ed column that the OPR’s handling of the investigation is the “gift that keeps on giving,” adding that the OPR investigators are “incompetent.”  He said that “Leahy’s outrage displays how little he and OPR understand the basics of intelligence.”

Friday, February 26th, 2010

Code Pink protesters at the Senate Judiciary hearing on Friday (photo by Ryan J. Reilly).

At the conclusion of Friday’s Senate Judiciary hearing on the Office of Professional Responsibility’s look into the authors of the so-called “torture memos,” two protester from Code Pink asked pointed questions to Sen. Patrick Leahy (D-Vt.) — which he ignored — about why key witnesses were not called to testify.

“There’s no accountability,” said one protester. “There’s so many unanswered questions that we could use the power of subpoena to get the answers to. I think the American people are demanding accountability, the American people feel lost out here.”

She also asked why David Margolis was not forced to testify at the hearing.

Medea Benjamin, co-founder of Code Pink, said her organization wanted to see John Yoo and Jay Bybee in jail.

Earlier in the hearing, Leahy asked Benjamin to lower her sign, which was positioned to be within the frame of the C-SPAN camera broadcasting the hearing.

Video of the conclusion of the hearing is below.

Thursday, February 25th, 2010

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, February 24th, 2010

Acting Deputy Attorney General Gary Grindler will testify before the Senate Judiciary Committee Friday on the Justice Department Office of Professional Responsibility report on the conduct of the so-called “torture” memo authors.

No other witnesses are expected.

Gary Grindler (DOJ)

Last week, the House Judiciary Committee released the long awaited report on former Office of Legal Counsel lawyers Jay Bybee and John Yoo, who authorized harsh interrogation methods for use on terrorism suspects. An earlier draft of the report said the Bush officials had engaged in professional misconduct. But Associate Deputy Attorney General David Margolis, a career lawyer who has been at the DOJ about 40 years, softened the OPR conclusion to say Bybee and Yoo showed only “poor judgment.”

Grindler is currently the second-in-command at the DOJ. He replaced former Deputy Attorney General David Ogden, who resigned earlier this month.

The House Judiciary Committee also plans to hold hearings on the OPR report, but the panel has not yet announced dates for the hearings.

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Wednesday, February 24th, 2010

Barack Obama may not realize it, but I may have just helped save his presidency. How? By winning a drawn-out fight to protect his powers as commander in chief to wage war and keep Americans safe,” begins John Yoo’s op-ed in Wednesday’s Wall Street Journal.

John Yoo (Berkeley)

The law professor and former Office of Legal Counsel lawyer who blessed the CIA interrogation program spares nothing in attack on the Obama administration, generally, and the Justice Department’s ethics unit, the Office of Professional Responsibility, specifically.

OPR determined that Yoo and his former boss, Jay Bybee, now a federal judge, committed professional misconduct. That determination was downgraded by the department’s top career lawyer, David Margolis, to a finding that Yoo and Bybee exercised “poor judgment” in their work.

Yoo writes:

Part of Mr. Obama’s plan included hounding those who developed, approved or carried out Bush policies, despite the enormous pressures of time and circumstance in the months immediately after the September 11 attacks. Although career prosecutors had previously reviewed the evidence and determined that no charges are warranted, last year Attorney General Eric Holder appointed a new prosecutor to re-investigate the CIA’s detention and interrogation of al Qaeda leaders.

In my case, he let loose the ethics investigators of the Justice Department’s Office of Professional Responsibility (OPR) to smear my reputation and that of Jay Bybee, who now sits as a federal judge on the court of appeals in San Francisco. Our crime? While serving in the Justice Department’s Office of Legal Counsel in the weeks and months after 9/11, we answered in the form of memoranda extremely difficult questions from the leaders of the CIA, the National Security Council and the White House on when interrogation methods crossed the line into prohibited acts of torture.

Yoo criticizes OPR’s years-long investigation of him as infused with “rank bias and sheer incompetence” — taking Margolis’ conclusions to their extreme — and dollops blame on Attorney General Eric Holder for failing to stop “this sorry mess earlier,” as his predecessor, Michael Mukasey, tried to do.

And why did Yoo and his top-notch lawyer, Gibson, Dunn & Crutcher’s Miguel Estrada, fight so strenuously to reverse OPR’s “mistakes, misdeeds and acts of malfeasance”?

For Obama, of course:

Mr. Obama is fighting three wars simultaneously in Iraq, Afghanistan, and against al Qaeda. He will call upon the men and women serving under his command to make choices as hard as the ones we faced. They cannot meet those challenges with clear minds if they believe that a bevy of prosecutors, congressional committees and media critics await them when they return from the battlefield.

Click here to continue reading Yoo’s piece.

Monday, February 22nd, 2010

A junior ex-Justice Department lawyer played a pivotal role in drafting the memos that authorized harsh interrogation methods, Talking Points Memo reported today.

Jennifer K. Hardy (Kirkland & Ellis)

Former Office of Legal Counsel lawyer Jennifer Koester, now Jennifer K. Hardy, wrote early drafts of the “torture” memos, consulting with her superiors, including ex-OLC official John Yoo, who was recently cleared of any misconduct stemming from the memos. She was less than 30 years old at the time, according to TPM.

Her name was redacted through all but one part of the final DOJ Office of Professional Responsibility report on possible misconduct in the authorization of the harsh interrogation methods, which included waterboarding. In an apparent oversight by the redactors, her name appears in a footnote in the report.

Here is the footnote found on page 50 of the final OPR report:

“In her notes, REDACTED raised several problems with the defenses, including the comment that self-defense “seems to me wholly implausible” because of the requirement that threatened harm to be imminent. In her interview with OPR, Koester told us that she ultimately resolved all of her problems with the defense, and concluded that the defenses were applicable to the torture statute.”

Koestler, who is now a partner at D.C. law firm Kirkland & Ellis, did not respond to a request for comment from TPM. Read more about her here.

Here are some more excerpts TPM found about her in the OPR documents released Friday by the House Judiciary Committee:

“According to Yoo, they agreed that REDACTED was the best choice, probably because she had recently joined OLC and therefore had some time available.”

“I have a number of large projects with different people. I would have said no but it didn’t seem like that was an option here,” Koestler wrote in an e-mail to a friend. She added that she enjoyed the projects but wanted “enough time to do a good job on it.”

“Koester, because of relative inexperience and subordinate position, did not commit misconduct,” but that “she appears to bear initial responsibility for a number of significant errors of scholarship and judgment.”

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