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Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Internal DOJ Investigation of OLC Advice-Giving
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Wednesday, February 27, 2008
Internal DOJ Investigation of OLC Advice-Giving
Marty Lederman
It was widely reported last week that the head of DOJ's Office of Professional Responsibility (OPR), Marshall Jarrett, had written to Senators Durbin and Whitehouse to inform them that OPR is investigating OLC's legal advice with respect to waterboarding and other coercive interrogation techniques. But it appears that, for whatever reason, none of the news sources bothered to upload or link to Jarrett's letter, nor to the letter from DOJ Inspector General Glenn Fine, explaining that the IG lacks statutory jurisdiction to engage in an inquiry of OLC.
Comments:
Myself, I remain a bit skeptical of what could come from such an investigation, by either OPR or the IG. If either of them "found" that OLC's advice was wrong, or even egregiously wrong, it would remain the case that OLC, the AG and the President disagree.
I think this misses the political consequences of a plausible finding that the Yoo-Bybee memo was something a 2L summer clerk would be embarrassed to present.
I think this misses the political consequences of a plausible finding that the Yoo-Bybee memo was something a 2L summer clerk would be embarrassed to present.
Yeah, but when we multiply by the probability of such a result, we still get zero.
This is an important message to be gotten out that we have an investigatory shellgame going on. This reminds me of the Abu Ghraib investigations. Clearly the press has been led to believe this is something, when it really is not. Even if Glenn Fine had the investigation all he could do is make a recommendation to the AG to do something which the AG is not willing to do. The point is that it is a question of power. We have to push these powerful persons to do something that they do not want to do and to do it quickly. They will spin out games like this forever unless we call their bluffs on all this.
Best, Ben
More cheerfully, LTG Maples of the DIA has just testified that waterboarding violates Common Article 3 and is inhumane.
Haynes announces he's leaving, & the whole Pentagon goes to hell in a handbasket ....
It's HR 928 "Improving Government Accountability Act" specifically Sec.10(b)(1)(A) which removes the prohibition Fine was talking about in his letter.
The change reads: Section 8E of the Inspector General Act of 1978 (5 U.S.C. App.) is further amended in subsection (b) by striking "and paragraph (3)" in paragraph (2). Paragraph 8E(b)(2) of IGA of 1978 is what is effectively preventing now IG from investigating DoJ attorneys in matters regarding providing legal advice. --- Bonus material and a badly stinking one at that: An unrelated section of this new bill HR 928, specifically 10(a) removes the requirement that IG reports immediately to the Congress when Attorney General orders him (as is his prerogative) to refrain from initiating any investigation on grounds that such investigation would: require access to sensitive information concerning— (A) ongoing civil or criminal investigations or proceedings; (B) undercover operations; (C) the identity of confidential sources, including protected witnesses; (D) intelligence or counterintelligence matters; or (E) other matters the disclosure of which would constitute a serious threat to national security. Smells like Cheney lawyers or Gonzo here!
For those interested here is the relevant section (specifically - AG authority to block IG investigations on national security grounds and the prohibition on some investigations of DoJ attorney by Fine) in the Inspector General Act of 1978.
A colleague has told me that OPR can make referrals directly to state bar associations on the ethics violations without an AG approval. If that is the case, then one can see that the OPR can have an affect if it gets there.
Best, Ben
I think the point that is missed is that, while the OPR investigation cannot really have any impact, even in a hugely egregious situation, where it can have benefit is in providing one more piece of armor for the Knights in Rusted Reasoning who entered the tournament lists to champion torture and Executive Branch cover up of toture and crime as "classified."
It isn't being pursued for what it could do if there were a problem, it is being pursued to help build the case that no one did anything "wrong" or outside of professional norms with soliciting torture. It would be nice, for example, to have someone actually review how you slap "classified" on a memo that is all about, at its essence, covering up illegal and embarassing behaviour and not, under any stretch of rationale thought, about "national security." But the investigation won't go there at all. It will simply find that while the opinions may or may not have been flawed, those who generated them followed standards reasonably consistent with minimal professional requirements. That's all that any part of DOJ is good for these days, after years of acquiescing in, and even soliciting, depraved Executive Branch behavior - to be one more piece of a firewall.
Marty:
You forgot the possibility that OPR or the IG could very well find that the OLC's advice broke no ethical rule. Indeed, I would not be surprised at all if DOJ's purpose here was to seek yet more legal cover against political attack. This is no way to fight a war.
"This is no way to fight a war."
A well-deserved epitath for the Bush adminstration's foreign policy, actually.
Presumably, the point of the OPR investigation is not to determine whether the OLC's advice was "wrong" but whether its analysis complied with professional standards. For example, it has been argued that the original OLC torture memo failed to cite relevant authorities, failed to consider obvious counterarguments, misstated authorities, and did not adequately apprise the client of the risk of contrary findings by a court. The OPR could find some or all of these deficiencies without expressing an opinion on whether the ultimate conclusions were right or wrong.
I'm afraid I partially agree with Bart and Mary. Even if the OLC's advice were found to be lacking in professional standards, it seems to me that blame for acting upon that advise would slip off of the administrators and land solidly in the lap of those people deemed unprofessional in the investigation.
Overall, it's a win-win approach for the Administration.
thanks so much i like very so much your post
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