OPR Report: Will It Undercut Cheney’s Legal Reliance Excuses?

Let’s take a closer look at the latest round of reporting on the as-yet-still-not-released OPR report on legal reasoning (or lack thereof) at the Bush/Cheney OLC. 

On the heels of Isikoff’s Saturday leakfest, Newsweek coughs up with some intriguing tidbits:

Filip also insisted that detailed responses from the three former senior lawyers at the department’s Office of Legal Counsel–Jay Bybee, John Yoo and Steven Bradbury–be included as part of the final copy of the report, one former Bush administration lawyer told NEWSWEEK. (Bybee, Yoo and Bradbury did not respond to repeated requests for comment. In addition, Miguel Estrada, a lawyer who has represented Yoo on matters relating to his service at OLC, declined comment.)

 Citing information contained in the NEWSWEEK story, Durbin and Whitehouse in their letter Monday asked Jarrett to clarify the status of the report and tell them when it will be released. (Durbin also recently privately pushed David Ogden, nominee to be deputy attorney general, to make the release of the report a top priority, according to a Senate Judiciary Committee staffer who asked not to be identified talking about private discussions.)

The report, according to the senators and others, could have widespread implications. If Holder accepts the findings, the OPR report could be forwarded to state bar associations for possible disciplinary action against the lawyers. More broadly, the report would likely affect the broader debate over calls for a "truth commission" and other investigations of Bush-era policies.

Aside from whatever professional responsibility implications there may be ahead — and the WaPo hints that bar complaint referrals are forthcoming — it certainly calls fitness into question when a case like Youngstown can be so conspicuously absent from legal analysis on presidential powers.  And absent from publicly released OLC memoranda thus far.  Implausible.

I know we’ve talked at length about this, but I cannot emphasize enough how deliberate such an omission must have been. 

The question is: because the lawyers were not honest or competent enough to attempt to refute it? Or because they were ordered to omit its findings from their analysis in order to skew the results? And, if so, by whom and when?

Which is, ultimately, the crux of all of this, isn’t it?  Especially since Cheney’s been parading his "I relied on the lawyers" malarky for personal rehab.

Is the latest round of sympathetic leaks a by-product of Cheney’s "every Dick For himself" manifesto?  Or is this Yoo, Bradbury, Haynes or someone else on the legal practice hook?  

Because this from Durbin, Whitehouse, et al. is quite intriguing:

Durbin and Whitehouse spoke out after hearing complaints that the report may have fallen victim to foot-dragging by former Justice Department leaders who questioned its conclusions and its fairness. Memos issued by the OLC have been a frequent political pressure point. During the presidential transition, Bush officials refused to turn over the documents, prompting a high-level meeting between Fred Fielding, White House counsel for Bush, and Gregory B. Craig, who has become White House counsel for Obama. House and Senate Democrats continue to insist that the memos be released to the public.

Oh, to have been a fly on the wall for the FIelding/Craig meeting. Anyone else wonder if Addington sat in?

Someone in this chain is getting antsy though.  How do I know?  because the "torture twins" have another op-ed in the WaPo making excuses.  Is it getting hot inside the Beltway now that so many things seem to be seeping out of the man-sized safe?  

Or is it the most recent refutation of their horrid policy pronouncements:

"It would be better that the government recognized that there are risks — rather than frightening people in order to be able to pass laws which restrict civil liberties, precisely one of the objects of terrorism — that we live in fear and under a police state," said Stella Rimington, former head of MI5, the domestic intelligence-gathering agency.

In an interview with Spain’s La Vanguardia newspaper, which was republished in the British press Tuesday, Rimington compared the controversial anti-terror practices at the U.S.-run detention center at Guantanamo Bay military base in Cuba with Great Britain’s MI5 security service.

"MI5 does not" engage in the same activities, she said, adding that the U.S. practice of prosecuting terror suspects through the military system, and using widely denounced interrogation measures, "has achieved the opposite effect — there are more and more suicide terrorists finding a greater justification."

Heaven forbid we question efficacy, let alone legality, of these actions. That might call the whole shebang into question, eh? More on the human rights counter-terrorism assessment here. (H/T to pmorlan.)

The NYTimes, the ABA JournalScott Horton, and Raw Story have more.

16 Responses to "OPR Report: Will It Undercut Cheney’s Legal Reliance Excuses?"
perris | Tuesday February 17, 2009 12:19 pm 1

if yoo is referred for disiplinary action, I am pretty certain his pastey butt will throw cheney’s pastey butt under the train (under the bus is so yesterday)

johnSwifty22 | Tuesday February 17, 2009 12:23 pm 2

I’m sure you’ve seen the YouTubes of Olivia Newton John’s revival in Sordid Lives; but anything Cheney related always brings it to my mind:

You Look Like a Dick to Me

Sachem | Tuesday February 17, 2009 12:31 pm 3

What is being missed is the (hinted about) recent uncovering of memos from the White House requesting the formulation of these opinions to justify the “unitary executive” malarky. Best guess is that this leads to Addington.

Christy Hardin Smith | Tuesday February 17, 2009 12:37 pm 4

For folks who were wondering about the Rove subpoena question, I left some information in the prior thread.

Christy Hardin Smith | Tuesday February 17, 2009 12:38 pm 5
In response to Sachem @ 3

Don’t all roads lead to Addington? (And I’m only partly kidding…)

AZ Matt | Tuesday February 17, 2009 01:07 pm 6
In response to Christy Hardin Smith @ 5

Can we just put some blacktop on him and run a roller over it several times? There are many potholes out there that need to be filled.

Arbusto | Tuesday February 17, 2009 01:19 pm 7

Obama’s actions in existing DoJ cases seem a tacit retention of Unitary Executive Privilege. Holders release or squashing the report will speak volumes about the transparency Obama touts. Of course I’m sure under the current climate, at least an unauthorized report will surface.

MrWhy | Tuesday February 17, 2009 02:24 pm 8

Here’s a link to Greg Sargent’s posting of the Durbin/Whitehouse letter to Marshall Jarrett.

PS No preview…

MrWhy | Tuesday February 17, 2009 02:26 pm 9

Jkat | Tuesday February 17, 2009 03:02 pm 10

yeah .. i tend to agree with the opinions iv’e read from greenwald .. scott horton and prof. marty lederman .. et al [balkanization] .. that the memos yoo wrote were reverse engineered in an attempt at butt-covering for acts which had already been undertaken .. policies already underway .. etc ..

and now .. we need someone to step up and enforce the law ..

and at the very least .. yoo does not need to be “teaching” anyone “the law” .. and can we hope that p.o.s. david addington esq. gets his comeuppance as well .. ??

bobschacht | Tuesday February 17, 2009 03:10 pm 11

Thanks for this post; I was wondering what you were thinking about.

If “the WaPo hints that bar complaint referrals are forthcoming,” and Bybee is one of those referrals, and if his bar suspends or whatever his license to practice, does that force him to resign his judgeship? (Be still, my pounding heart!)

Bob in HI

MadDog | Tuesday February 17, 2009 04:05 pm 12

Tangentially OT – Jane Mayer has another one of her typically excellent pieces up at the New Yorker:

The Hard Cases

Will Obama institute a new kind of preventive detention for terrorist suspects?

The last “enemy combatant” being detained in America is incarcerated at the U.S. Naval Consolidated Brig in Charleston, South Carolina—a tan, low-slung building situated amid acres of grassy swampland. The prisoner, known internally as EC#2, is an alleged Al Qaeda sleeper agent named Ali Saleh Kahlah al-Marri. He has been held in isolation in the brig for more than five years, although he has never stood trial or been convicted of any crime. Under rules established by the Bush Administration, suspected terrorists such as Marri were denied the legal protections traditionally afforded by the Constitution. Unless the Obama Administration overhauls the nation’s terrorism policies, Marri—who claims that he is innocent—will likely spend the rest of his life in prison…

A must read! And perhaps a post or two.

Jkat | Tuesday February 17, 2009 06:46 pm 13
In response to MadDog @ 12

many thanks for the mayer NY’er link Mad dog … that’s a very good read .. i’m especially impressed by the training and compassion demonstrated by the guards and commanders of the brig … very impressive .. and very “typically american” imo ..

i’m no bleeding heart softie .. but i do think such actions on our part say far more about the character of amercia ..and can do far more .. in our favor .. than extremism and punative actions ..

WVAPA | Wednesday February 18, 2009 08:43 am 14
In response to AZ Matt @ 6

I hope Obama will reject Bush’s claim of unified executive privilege. I know that many people find references to Hitler’s Germany to be tired and hackneyed, but Yoo’s el al.’s theory of a unified executive and mysterious powers granted to the President as commander-in-chief find their origins not in our Constitution, but in Hitler’s Enabling Act of 1933. Acting under a false claim of “national emergency” (sound familiar?), a two thirds vote of a coerced Reichstag gave Hitler complete control of the government, after he had promised to use the power only as absolutely necessary. The rest is history.

Interestingly, defendants at Nuremberg were not allow to use a defense that they had been acting on what they believed were lawful orders. And, in fact, the orders they f0llowed were lawful, in that Germany had changed its constitution with the Enabling Act to allow Hitler to do whatever he damned well pleased, as long as it was in the name of national security. I suppose the Nuremberg Court’s rationale would have been that some acts are so inhumane and heinous that they cannot be justified in law.

I hope President Obama, a constitutional scholar, and his DOJ would find the Nuremberg experience instructive and that appropriate action be taken against the whole band of criminals in the previous administration.

DWBartoo | Wednesday February 18, 2009 01:39 pm 15
In response to Christy Hardin Smith @ 4

Thank you for that information and clarifying perspective, Christy.

Presumably, when he shows, Rove will have to answer (one way or another) all of the questions put to him, and not simply those which he wanted the ’subject’ limited to?

At least, I gather, that that is what Conyers intends?

RevBev | Wednesday February 18, 2009 02:06 pm 16

FRESH AIR has Jane Mayer on today with good discussion about the dubious lawyer opinions, the torture evidence, and groups that may go forward with the investigations.

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