OPR Report Altered To Cover Bush DOJ Malfeasance

dbamericasafeMike Isikoff and Dan Klaidman put up a post about an hour ago letting the first blood for the Obama Administration’s intentional tanking of the OPR (Office of Professional Responsibility) Report. In light of Obama’s focused determination to sweep the acts of the Bush Administration, no matter how malevolent, under the rug and “move forward” the report is not unexpected. However, digesting the first leak in what would appear to be a staged rollout is painful:

…an upcoming Justice Department report from its ethics-watchdog unit, the Office of Professional Responsibility (OPR), clears the Bush administration lawyers who authored the “torture” memos of professional-misconduct allegations.

While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources. (Under department rules, poor judgment does not constitute professional misconduct.) The shift is significant: the original finding would have triggered a referral to state bar associations for potential disciplinary action—which, in Bybee’s case, could have led to an impeachment inquiry.

The news broken in the Newsweek Declassified post is huge, assuming it is accurate, and the sense is that it is. In spite of the weight of the report, the report tucks the substantive content behind the deceptively benign title “Holder Under Fire”. The subject matter is far too significant though for it to have been casually thrown out. Consider this description of the OPR finding on the nature and quality of the critical August 1, 2002 Torture Memo:

The report, which is still going through declassification, will provide many new details about how waterboarding was adopted and the role that top White House officials played in the process, say two sources who have read the report but asked for anonymity to describe a sensitive document. Two of the most controversial sections of the 2002 memo—including one contending that the president, as commander in chief, can override a federal law banning torture—were not in the original draft of the memo, say the sources. But when Michael Chertoff, then-chief of Justice’s criminal division, refused the CIA’s request for a blanket pledge not to prosecute its officers for torture, Yoo met at the White House with David Addington, Dick Cheney’s chief counsel, and then–White House counsel Alberto Gonzales. After that, Yoo inserted a section about the commander in chief’s wartime powers and another saying that agency officers accused of torturing Qaeda suspects could claim they were acting in “self-defense” to prevent future terror attacks, the sources say. Both legal claims have long since been rejected by Justice officials as overly broad and unsupported by legal precedent.

Hard to figure how this finding and conclusion could be determined by David Margolis to warrant the “softening” of the original finding of direct misconduct. Margolis is nearly 70 years old and has a long career at DOJ and is fairly well though of. Margolis was tasked by Jim Comey to shepherd Pat Fitzgerald’s Libby investigation. In short, the man has some bona fides.

Margolis is, however, also tied to the DOJ and its culture for over forty years, not to mention his service in upper management as Associate Attorney General during the Bush Administration when the overt acts of torture and justification by Margolis’ contemporaries and friends were committed. For one such filter to redraw the findings and conclusions of such a critical investigation in order to exculpate his colleagues is unimaginable.

One thing is for sure, with a leak like this being floated out on a late Friday night, the release of the full OPR Report, at least that which the Obama Administration will deem fit for the common public to see, is at hand. Mike Isikoff and Dan Klaidman have made sure the torturers and their enablers can have a comfortable weekend though. So we got that going for us.

  1. emptywheel says:

    And this immediately raises questions for me about the veracity of both representations in the DOJ IG Report on torture (and representations abotu what Chertoff did and didn’t say) and about Addington’s testimony before the House Judiciary COmmittee.

    Anyway, what a surprise, huh? After sitting on it for a year, Obama spiked the OPR report.

  2. PJEvans says:

    It makes me wish there was someone who would release the original report, without the redactions and the softening and whatever else was done to make it safe for these guys to go out on the streets.

    • kindGSL says:

      It makes me wish there was someone who would release the original report, without the redactions and the softening and whatever else was done to make it safe for these guys to go out on the streets.

      Well that is the person we should make president next.

  3. Jim White says:

    From the link:

    A Justice official declined to explain why David Margolis softened the original finding, but noted that he is a highly respected career lawyer who acted without input from Holder


    I’m finding that one a bit hard to believe. How ironic. The original torture memos got altered to authorize what the Bush administration wanted to do. Now the OPR report magically gets altered to allow the Obama administration to do nothing, just as it wishes. This outcome is just as blatant a politicization of what should be purely legal reasoning as the Yoo and Bybee memos.

      • perris says:

        obama is with hia actions covering up crimes against our country and the international community

        I would definately be on board an impeachment initiated by either party against obama if they used these crimes for their initiative

  4. bgrothus says:

    The report, which is still going through declassification, will provide many new details about how waterboarding

    paging the Hague

    • Peterr says:

      You, if you were Dawn Johnsen, might also tell bmaz or Marcy why you are declining to serve any longer. Backing out quietly is one thing; telling the world you are disgusted with your almost-but-not-quite employers is something else.

      Embarrassment and shame can be powerful motivators.

      • Jim White says:

        Oh, yes. She should make it spectacular and show them the intelligence, sense of justice and righteousness they are losing by not living up to the standards of people with whom she will associate. I’m thinking maybe the entire show on a Sunday morning with the Snuffleupagus guy. She could lay out the whole laundry list of what Obama and Holder are doing to trash the Constitution and international law.

      • bobschacht says:

        That’s the only sensible thing for her to do. I’m sure she’s discussed this with her departmental chair, and they have a contingency plan for what to do if and when her nomination is approved. If I were at her school, I’d sign up for all her classes pronto. Even though I’m supposed to be retired. *g*

        Bob in HI

    • bluewombat says:

      Well said, sadly. Increasingly, the Obama administration is reminding me of the Bush administration in yet another way — it’s what an acquaintance of mine called “an integrity sieve” — all the people with integrity are strained out, with only the morally vacuous hacks able to gain admittance.

  5. papau says:

    It is harder for me to be a Democrat.

    Harder to see a way to ever vote for Obama again.

    Every action of late adds to the difficulty.

    If the health bill is the Senate bill – or no bill – that will be it.

    I am in Mass. I chose to stay home in the election of Martha – whom I have met and liked – just to send a message. It appears impossible to get the message heard by Obama – or he does give a care what the hell the base thinks. Either way – what’s the point of being a Democrat – giving time and money to the party’s candidates – any more? Obama promised to be more progressive, more liberal than Hillary – I did not believe it then but when Hillary asked for unity I went out and worked for his election. Hard to see that happening again. Hard to see believing that a Democrat is a progressive again.

  6. DaddyO says:

    Time to dust off the torches and the pitchforks.

    Until people are marching in the streets, nothing is going to be done about this. Maybe…MAYBE…we’re the only ones who have noticed, or who care.

  7. bobash says:

    These guys had such promise a year ago. What a fucking waste. This just another bullet in the heart of rare opportunity.

  8. marc5 says:

    Go along, get along. What’s a war crime or two between friends, anyway.

    Having just watched some portions of the President’s seemingly earnest responses in the “question time” this Friday night news dump is especially jarring.

  9. bigbrother says:

    Obama made a big point out of we won’t torture. Shutting down all the torture hotels and the ones other states run for USA…wait changed his mind. Wow that is change we can believe in. Secret torture WTF.

  10. BigJess says:

    What’s your favorite nickname for Obama?

    Bush 44?

    Personally, I like Pinocchio.

    Said it before, say it again: Greatest liar in American political history.

    Also the biggest waste of talent, potential, and opportunity in history.

  11. JThomason says:

    This is the offshoot of Obama’s avowed pragmatism, which is essentially a hierarchical statism. The idea is to strive for a rising economic tide in order to ameliorate injustices. The treasury is gutted, the banks are involved in dictating to their customers rather than contracting with them and Obama wants to ruffle no feather all the while scapegoating the Pashtuns.

    The problem is that the rest of the world is looking at these issues from a zero sum perspective. If he were a true realist and enjoyed something of a tragic sense of history, he would understand that the Republicans will let him pay it forward and then do nothing to reciprocate. Meanwhile Obama gains the consolation of appearing to be reasonable.

    Its really quite selfish to avoid the difficult path to justice, but oh so expected among the American governing elite.

    • FromCt says:

      Its really quite selfish to avoid the difficult path to justice, but oh so expected among the American governing elite.

      It’s quite easy, but it’s against the law, just as all of Obama and Holder’s other failures to follow and to enforce the domestic law and ratified treaty obligations are.
      The Constitution has only one remedy when the executive blatantly violates his oath to protect and preserve the Constitution. That remedy was taken off the table years ago in Washington and this thread’s author does not want it discussed.

    • bobschacht says:

      As I suggested @ 37, maybe the Isikoff/Klaidman leak is designed to influence Holder’s final approval (or not) of the document on his desk, by giving opponents of the coverup a head’s up to press their last minute appeals to Holder. IOW, I/K are letting other senior DOJ and WH legal beagles a tip off that this is what’s about to happen, do you really want this? After all, it’s not Final until it’s been officially released.

      At least, I hope that’s the case.

      Bob in AZ

  12. orionATL says:

    Margolis is the lord Hutton of the justice dept.

    The ONLY reason you give a Hutton or a margolis an opportunity to make highly consequential decisions is

    Because you know damn well what they will decide before you give it to them.

    Margolis was mentioned repeatedly in reporting about the doj under bush.

    Ask yourself “how does a high-level, long-time doj employee do it?

    By kissing the ass of every boss he ever had.

    That’s how you get your 40- yr pin.

    James comey loved doj,

    But he didn’t get a 40 yr pin.

    he didn’t last past gw and sancho panza.

    Just as a lawyer doesn’t ask a question she doesn’t know the answer to,

    So a senior doj administrator doesn’t Give a critical and potentially explosive report to a subordinate to edit,

    Unless that administrator is completely confident of the answer the employee will provide.

    Margolis – fixer.

    Holder – fixer.

    Obama – fixer.

    Yoo – intellectually dishonest, professionally incompetent, csreer serving republican party operative

    Who is almost in The clear now in this country.

    But then there are those other nations –

    This could
    Get interesting
    Over the next ten years.

  13. bobschacht says:

    I’m wondering if this Isikoff/Klaidman leak was planted by someone who knew this was about to come down, and wanted to spike it? That is, set someone’s hair on fire within DOJ who will go running down the hall to Holder’s office saying, “You can’t do this!!!

    What they should do is
    (1) Release the original report
    (2) with appendices by Yoo and all the other perps who should be prosecuted for war crimes with their prevarications about why the conclusions should be stated differently,
    (3) and a “Final Answer” by the head of OPR

    To do otherwise is like to allow this Roeder murderer to edit the Jury’s decision to convict him of first degree murder. He’d do exactly what Yoo and Bybee have probably done, i.e., explaining how what they did was all perfectly justified.

    Obama can show mercy if he wants. But first, let justice be done.

    Bob in AZ

  14. dopeyo says:

    i wonder if anyone in The Hague is putting in a little overtime this weekend, having seen us drop the ball, stomp the ball and then drive a stake thru the ball ….

  15. JasonLeopold says:

    on a side note, how does this finding/conclusion square with Padilla’s lawsuit against Yoo? The Justice Department noted in an earlier court filing, as Marcy wrote about, that the OPR probe would be the way to punish bad lawyering.

  16. prostratedragon says:

    Anyone think Snuff would have DJ on? I don’t, but I wouldn’t mind being surprised. (At the moment I’m very unsurprised, and truly not feeling too well.)

    I’ll bet at least one of the less-visible would do it, though, and at least she’d have her thoughts out there.

  17. thegris says:

    Margolis was tasked by Jim Comey to shepherd Pat Fitzgerald’s Libby investigation.

    Maybe that is why Cheney never got indicted (or a grand jury was asked) about Cheney’s lying to investigators during his FBI interview.

  18. mgloraine says:

    This shows the Obama DoJ to be just as politicized as the Cheney-Bush DoJ.

    Maybe it’s time to beat Holder over the head with “Holder = Gonzales” references. More importantly, it would be useful if the ACLU and other respectable legal heavyweights could make the point that Obama’s minions, by getting involved in covering up Cheney-Bush war crimes, are being accessories after the fact. We need people with clout (not just the DFH squad) to loudly/conspicuously declare that waterboarding (and the other Yoo/Bybee “interrogation techniques”) constitute torture, that torture is a war crime, and that covering up war crimes or refusing to prosecute war crimes is itself a war crime. Obama and Holder must be made to feel that they are PERSONALLY in danger of being prosecuted for war crimes if they don’t start playing this straight.

    I can’t help but wonder just WHAT Obama & Holder think they are gaining by protecting the Cheney-Bush Gang? Did they think it would get them cooperation from Republicans in moving legislation? Or is somebody offering them money and valuable prizes for their complicity?

    • shekissesfrogs says:

      I suggest that we just revert to calling them all by their former names: Bush, Gonzales, and Rove. It’s only their faces that have changed.

  19. JasonLeopold says:

    OPR’s post investigation guidelines:

    Post-investigation Procedures

    At the conclusion of the investigation, OPR makes findings of fact and reaches conclusions as to whether professional misconduct has occurred. OPR may find professional misconduct in two types of circumstances: (1) where an attorney intentionally violated an obligation or standard imposed by law, applicable rule of professional conduct, or Department regulation or policy, or (2) where an attorney acted in reckless disregard of his or her obligation to comply with that obligation or standard. OPR may also find that the attorney used poor judgment or made a mistake; such findings do not constitute findings of professional misconduct.

    Wow. So poor judgment is more like a mistake. Wouldn’t the meeting with Addington and Gonzales described in the article seem more like reckless disregard?

  20. JasonLeopold says:

    from the OPR guidelines….

    “In cases of poor judgment, the attorney’s supervisors may consider training, reassignment, or disciplinary action.”

    Obviously that only applies if Yoo still worked there. But the way they describe poor judgment makes it sound as if the violations that would constitute such a finding would be more minor infractions.

  21. earlofhuntingdon says:

    I see that Newsweek sticks to the tradmed meme of a pox on both their houses: the right heckles Holder for having the temerity to try alleged terrorists in open court in NYC, an act that upholds centuries old prosecutorial standards and the aspiration that justice should not only be done, it must be seen to be done. And the left will be “upset” because the DoJ’s OPR report mysteriously “clears” the drafters of the infamous torture memos of alleged “professional misconduct”.

    The right hopes to intimidate Holder into not doing his job with manufactured and hyperbolic claims. The left is angry and frustrated because he fails to do his job and blindly follows Obama’s political druthers that he not look into criminal misconduct in the Bush White House. The equivalence escapes me.

  22. JasonLeopold says:

    this May 4, 2008 letter from Assistant Attorney General Ronald Weich’s May 4, 2008 letter to Democratic Senators Dick Durbin and Sheldon Whitehouse says if the appeals filed by Yoo, Bybee and Bradbury resulted in a rejection of OPR’s findings by the “career official” reviewing the document then no referral to state bar associations would occur.

    “Department policy usually requires referral of OPR’s misconduct findings to the subject’s state bar disciplinary authority, but if the appeal resulted in a rejection of OPR’s misconduct findings, then no referral was made.”

    Also, the CIA weighed in on this report. I hope we get to find out what their comments were to the initial draft

  23. Jeff Kaye says:

    I’ve posted a Seminal diary on Mr. Margolis:

    David Margolis: Hatchet Man for Holder/Obama on OPR Torture Memos Report

    I was going to write a comment, but it got too long. Of course the whole thing is outrageous, but not in the least surprising. What is surprising is that Margolis has gotten away for so long with a supposed clean rep. I suppose that’s because of the role in the Plame investigation. But take a look at the bigger picture (see article). Here’s one snippet (see original for embedded links):

    The role of Margolis, and the man himself, deserve a closer look. It does not take long to see that 40+ year DoJ veteran David Margolis has some skeletons in his closet, and that his track record is not unblemished.

    In a July 2000 letter to the New York Review of Books by by E.L. Doctorow, Peter Matthiessen, William Styron, Rose Styron, Kurt Vonnegut, singled out Margolis as “point man” on a DoJ “vendetta” against Cointelpro victim Leonard Peltier.

    Three months ago, in March, I had a phone call from a lawyer who has never been involved in the Peltier case but was aware of my longtime concern. A friend in the Justice Department had just mentioned to him that the FBI was intensifying its anti-Peltier vendetta within the department, with Associate Deputy Attorney General David Margolis as the point man.

    More recently, a 2008 Los Angeles Times story indicated that Margolis had changed DoJ policy and decided to withhold summaries of OPR investigations. The article noted that ” the resolution of most matters investigated by the OPR remains closely guarded, even in cases where courts have found evidence of serious prosecutorial misconduct.”

    The LA Times continued:

    Publishing the summaries “reassures the public that [the Department of Justice] takes its self-regulatory responsibilities seriously and puts prosecutors on notice that they face public embarrassment if they are caught engaging in wrongdoing,” said Bruce Green, a former federal prosecutor and a professor at Fordham Law School in New York.

    Associate Deputy Atty. Gen. David Margolis said it was his decision to excuse the OPR from preparing summaries of cases that might be released to the public. He said the decision reflected a lack of resources, as well as concern about balancing public interests with the privacy rights of individual attorneys facing accusations.

  24. Wahrheit says:

    Obama/Holder don’t want to follow the threads that would have to result from a finding of professional misconduct against Yoo and Bybee. I suspect these two would not be willing to take the rap alone and what was discussed at the meetings with Addington and Gonzales would inevitably become public. The threads would multiply and Obama/Holder know exactly where they would end up. They have no stomach for having to prosecute a former President and Vice-President for war crimes. The easiest way to avoid arriving at an undesireable destination is to just not set foot on the path to begin with.

    But speaking of destinations…Bush and Cheney better seriously think about cancelling those European vacations.

    • bmaz says:

      Why would Bush and Cheney need to cancel European vacations?? Because the baggage fee is too high on airlines now? Because if you think they have any exposure to prosecution in a European court you are nuts. That will never happen without the direct consent of the US government, and that will never be given.

      • Jeff Kaye says:

        Yes, thank you. The hope in the European Courts is akin to the hope in Obama. Who really believes that Europe will defy America this way, by trying its former leaders? That is fantasy.

  25. jaango says:

    How does one post a comment without offending the sensibilities of my good friends and political allies?

    A couple of weeks ago, Mitch McConnell gave a Senate floor speech in which he described the Republican Party as the Party of Freedom, and he went on to describe the Democratic Party as the Party of Justice. And the Obama and his DOJ seems content to continue with this ‘resonation’, and especially in keeping with this soon to be defunct OPR report.

    Perhaps, I need to explain that for me, a Party of Justice, proscribes that the political operatives determine the definition of “justice” when they-the political operatives, have the ability to ‘point their finger’ and thusly, determine this definition of “justice”.

    I, on the other hand, believe that we, as the ‘base’ of the Democratic Party need to emphatically state that the Democratic Party should practice the Art of Becoming and therein define our Party as the Party of Equality. For in doing so, the political operatives, will have to hold to a higher standard that we have defined for ourselves.

    And the first step in this Art of Becoming, I would like to see the more appropriate Great Scribblers on the major political blogs, craft the Democratic Platform for the next election with the notional that the Democratic Party is the Party of Equality, and not the Party of Justice.

    And if accomplished properly (Democratic Platform”), the “original” documents of the Bush administration, would be required to enter into the public domain, and thereby satisfying my concerns for addressing many of the contentious subject matters that due to a lack of transparency, are kept hidden from the general public and may never see the light of day, even from America’s capable historians.

    Well, here’s hoping anyway!


  26. wavpeac says:

    So Obama is concerned that the American people don’t trust government. He needs to understand that trust = accountability. These two concepts are intertwined. When he said he wasn’t interested in punishing the banks in his address, and then talked about the “trust” issue…I found it very interesting. There will be no trust without accountability. Until we defer to the laws of the land, instead of the personality at the helm, there is no trust.

    • slide says:

      Obama is a “bait and switch” fraud artist. Disregard anything he says and pay attention to his actions. His actions are where his ‘truth’ lies. Obama has consistently taken affirmative actions to cover up war crimes and much other criminal activity, which is well documented. He and his minyons are complicit in the criminal activity. I don’t see them as anything but common criminals. If this is they type of leaders we elect this country is truly in deep shit, another fact well documented. It is a race to the bottom. What a shame for a once proud and great country.

  27. cbl2 says:

    good morning bmaz and all –

    lemme see, lots to digest, but something really jumps up and smacks ya here:

    Patrick Fitzgerald = Rule of Law !

    Eric Holder = Spike away David !


  28. wavpeac says:

    I’ve said this before, no new thoughts on this, but Obama reminds me of a time in my life when, I would not, could not confront truth by setting appropriate boundaries and facing the consequences. I was afraid of the rage that would be returned upon me. I was spending many hours of my life, and many brain cells were devoted to finding ways around the messy consequences of reality. This rage worked well to keep me from living in the truth. The amazing thing is that once I started to follow the laws, a higher “power” so to speak, peace and serenity replaced my constant painful need to make him stop being angry. I was ready to face reality and my own consequences. As I did this…faced ME, “we” changed. I stood up, faced the rage and found that it would not kill me as I feared, that my freedom was in living with the truth. My truth was messy, it wasn’t pretty and most of all, it was not the black and white division that meant I was the good one and he was the bad one. Nope, it showed me how I was culpable, how I had colluded with evil.

    Our country is sick right now. We either are being run by the narcissist/authoritarian or the codependent/narcissist. Regardless, of the like-ability of the codependent…he is no less evil than the authoritarian. The coda still believes they know the “right” way to live. They still believe in managing and fixing the world. Which is it’s own form of narcissism. The codependent people pleaser is simply more like able and perhaps more outwardly kind. But the people pleaser is driven by a desire outside of truth.

    Obama needs to surrender to a higher power. The fix is the same whether it’s an authoritarian or a codependent people pleaser…ego must be replaced with something bigger. I do not believe it HAS to be some God, (not into that concept myself) but that it must be something representing VALIDITY. This validity can be found in laws, in the constitution, in nature, in physics. Obama has not surrendered to what is, and this means that we are without a doubt headed off course. His map of reality is missing some very important “features” and is no better a map to lead the country with, than Bush’s map. It just “appears” nicer.

    • Jim White says:

      That is a tremendous analysis of the situation. I would add that it gives further context to the widely quoted “We create our own reality” mindset of the Bush administration. Sadly, Obama and Holder are falling into that same trap, as you point out.

  29. perris says:

    hears what I don’t understand;

    if obama wanted to “move ahead” and have a succesful agenda, he could DEFINATELY get the “noe cons” on board his programs just to save their own hide, their party’s hide and give them some kind of hope for a future

    instead of using information like this as his own tool to facilitate a productive term in office, obama took this information and gave THEM a tool for destroying his presidency

    obama is really proving himself quite the non player

  30. klynn says:

    I am more convinced that this is happening to protect foreign countries involved in the design and legal twisting of our torture program.

    With Nuremberg, essentially it was one nation, one political party committing the crimes.

    Our torture, involves a number of nations. This is an effort to cover the guilt of many and prevent WWIII.

    Unfortunately, crimes are found out over time. This simply will delay and fuel global anger.

    I think we can conclude our nation has been highjacked.

  31. banderson2 says:

    Just face it, President Obama is not going to go after the Republicans, although if the shoe was on the other foot they would definitely be going after him. All people have to do is look at how the British government is willing to hold an inquiry into the lead up the Iraqi war yet we won’t even hold a hearing. Fuggeddaboutit. All of these conflicts are all about money. Look at the arms sale to Taiwan.

  32. captjjyossarian says:

    I’m starting to see why Bush Jr didn’t bother to hand out a lot of pardons. At the time it seemed odd… given what had gone on in the last 8 years. I had expected to see a massive “Patriot Shield” of pardons. But pardons aren’t needed if:

    Pappy still owns the CIA.

  33. Jeff Kaye says:

    The issue of the verdict of the report is very important. But, assuming we actually see this report (and until it’s actually here, I won’t believe it, we’ve been promised so often, and then disappointed), the other major story will be the amount of redactions.

    As I am fond of pointing out, the OPR report’s narrative and footnotes should throw a great deal of light onto the CIA’s manipulation of the memo’s construction. The fact the CIA’s Office of Technical Services vetted the supposed safety of the SERE torture techniques has been ignored by most of the press, but is key to understanding how the torture was implemented, and its links to past torture activities by the United States.

    The fix is in, as many commenters note. How much will we hold all the representatives of the U.S. government responsible for this travesty of government. Or will it be, move on, nothing to see, or move on, we must get to the government’s business? I think we know the answer.

  34. browngregbrown says:

    So, just further proof that this country’s government is absolutely corrupt, that the rule of law exists only for the proles.

  35. razorbrain says:

    Perhaps we all should have paid more attention, before the election, to the reported family connection between Obama and Cheney. Oy.

    It never ceases to amaze me how widespread has become the practice of screwing with the definition of common words to try and change the perceived meaning of an entire situation.

    And it saddens me enormously to witness the complete lack of respect the power elite consistently demonstrates for maintaining the integrity of “process.” Process inevitably involves close attention to detail, so I understand why the “common folk” are so willing to turn away from it, but the fact is, as anyone with legal training would attest, there can be no justice or fairness, or perception thereof, unless the public can have faith that the integrity of process has been maintained.

    • bmaz says:

      Right. In fact integrity of process is far more critical than individual results. At least it is supposed to be. But we now corrupt, bastardize, contort, rig and prostitute the process daily, if not hourly, to insure the conviction of some individuals and exoneration of others. It is wanton destruction of the rule of law and the core American ethos, but that is what we now have.

      • razorbrain says:

        Well, we agree completely on that, and given our mutual professional training, doesn’t that kind of raise, or even beg, the question of what response is required of us, legally, morally, philosophically, etc.?

        What kind of fools do we make of ourselves when we continue to accord the respect and deference instilled in us by our training, to a system that we can so clearly see to be corrupted from top to bottom? At what point do we become enablers of that corrupt system by continuing to play by its rules?

        These are the uber-questions that have plagued me for years, and which led in great part to my decision to stop practicing law. But even as a non-practitioner, I have to question whether all of us as citizens have some obligation to fight the corrupt system in any way that can bring it down and make possible a fresh start.

        You are more accomplished than I ever was. How do you feel about these issues?

        • bmaz says:

          Well I dunno about my level of accomplishment, you may be overrating it; but I am pretty much a process kind of guy. I think the best revolution is the one that is consummated within the system, even though that kind of detracts from the “revolutionary” luster.

          • razorbrain says:

            I guess I empathize with your idealism, but after many years of watching the system not only not correct itself, but rather move emphatically in the WRONG direction, I’ve become convinced that only something radical will effect any meaningful change in my lifetime, or anybody else’s, for that matter. I’d love to be wrong about that, and I search every day, in vain, for any evidence to support a hope of self-correction. At some point, it’s easier to start over, on a rational basis, than to try and untangle the un-untangleable, isn’t it?

          • razorbrain says:

            BTW, FWIW, I don’t think there’s any “luster” to revolutionary thinking, radical change inevitably is accompanied by dislocation and suffering. I don’t minimize that, or embrace it. But there is a tarnish that accompanies a process of continual compromise with corruption, and I don’t minimize or embrace that, either. If there is any “luster” to be found anywhere, I think it is only in aligning oneself with pragmatic action that brings oneself and society closer to truth and justice in pragmatic and meaningful ways. And I perceive that much dislocation and suffering is occurring already, as we continue to defer to a system that does not honor the correct values.

        • bobschacht says:

          the Doctrine of Discovery, a 500 year old law that says some people have no human rights.

          Well, yeah, and the original Constitution did not envisage rights for Black Americans, either. I think the Doctrine of Discovery was made obsolete when American Indians were granted full citizenship in the U.S.A. But yes, there certainly are pockets of racism against Native Americans. And the Office of Civil Rights was the one dept of the DOJ that Obama bragged on in his SOTU speech. Maybe they will do something.

          Bob in AZ

  36. Mary says:

    EW – do you have the actual letter Jarrett originally sent the members of Congress who were calling for the investigation – that’s the only thing that I can remember that referenced the parameters of the investigation at all.

    I’ll be the approaching-senile old codger in the rocking chair, repeating the same ol, same ol (including the fact that, as things have shaken out it looks more and more like Skeletor apparently had more integrity than the storyline heroics like Goldsmith). I’ve said for a long time that the drafting of the memos was not a good issue for either the ethics investigation or a criminal/civil suit. I guess there was always the chance that there would be a smoking gun emerge in emails and the like, but it has always been hard to believe that there would be something that pretty much flat out said things like “oh, let’s just not mention the old waterboarding prosecutions because if we did we’d have to say this is illegal and we want to deliberately misrepresent the law as a part of our conspiracy to enable the torture crimes” etc.

    It was always going to be far too easy to just say “bad lawyering, but it’s not a violation of ethics standards to be a bad lawyer”

    And someone like Margolis would be a good pick to make sure it went that way. Wasn’t this supposed to be an OPR investigation? Why, then, did it go to Margolis at all? That was pretty much the question being asked and answered when it came out that the report had gone to a Sr. DOJ official to be reviewed before being released. Why did the the OPR investigation get a rewrite by someone outside of OPR? That question answered itself.

    I’ve also said all along that everything you need to know about the integrity of the people at DOJ is evident from the fact that they continued to knowingly and voluntarily keep working for a torture regime. I know that sounds bombastic and you can say that it’s not as if we became China or Iran (although at least Iran has a mock trial before hangings, unlike the Bush-Obama approach of creating a hit list and assassinating) but torture is a dividing. You can’t make it into anything else – it’s like raping children. You don’t “go along” with it because it isn’t “all that bad” and end up being a person of any decency at all. So anything in-housed at DOJ is pretty much definitionally being handled by people who’ve already sold their souls. Years into the DOJ’s role as an advocating and soliciting wing for torture, you don’t have “good people” there.

    On Margolis, I’m also going to go back to the dead horse I keep beating from the Libby trial. In the argument on post conviction briefs (I’d have to go back to see which motion(s) were being argued, but I think it was the motion for release pending appeal) there was something that was, imo, pretty odd. You don’t get a lot of time in an argument and you usually spend your time on things that are important to your case.

    For some reason Walton and Fitzgerald went off on a tangent about whether or not Fitzgerald would “have” to run a decision to charge by Margolis. That was a really odd exchange imo bc everyone agreed that in Libby’s case, that had happened. Odd thing to spend your few minutes of oral argument time fussing about whether or not you had to do something that everyone agrees you did anyway – odd thing for Libby’s lawyers to be interested in, odd thing for Walton to want to be sidetracked on, very odd thing for Fitzgerald to waste time on. In all the “investigation” by Conyers and Leahy etc. no one ever asked what I thought were the basics at the time – no one got the children off the street re: what happened with Fitzgerald after Comey left. No one ever asked for a certification of the chain of supervision as McNulty came on (he had no conflict issue and could have easily recalled the delegation to Margolis) and no one ever asked for an answer to the questions that would have had to be answered if there had been – even under the DOJ regs and not the repealed Indep Counsel statute – and outside prosecutor. If there had been an outside prosecutor, DOJ heirarchy could still overrule his/her/their decision to charge, but Congress would have had to be notified. With the inhousing on the Libby investigation and all the odd issues relating to Rove (and Cheney) you’d have thought that the minimum Congress would have done would have been to ask whether there were any action taken in the inhouse investigation that would have, if an outside prosecutor had been used, resulted in required notifications to Congress. That and the chain on supervison seem to be to very basic points that no one ever asked about – glitzy questions they knew couldn’t be answered they asked, baseline questions that they could have had a good grounds to get a strong armed answer for – they didn’t ask.

    You’d really think they’d want to get that cleared up before letting Holder inhouse more with Durham. You’d think they would have had all kinds of questions on independence of prosecutorial decisions given the USAtty firings. YOu’d think – – you’d think no one in DC gives a rats ass. And you’d be right.

      • Mary says:

        Thank you so much -that was the letter I was trying to find. There must have been more exchanges, at some point, bc if not the scope of the review is even much more narrow than the already too narrow scope I thought it had. Oh well – and thanks for the link @ 120 as well. It certainly looks like what is being done isn’t what Reich tried to sell earlier as some kind of “typical” procedure. What he seems to be selling back in May is a process whereby the OPR does its report – IF that report finds that lawyers should be referred THEN they can “appeal” to the DAG who will appoint a career lawyer to basically serve as a judge, letting the appellees lay out their case, letting OPR respond to that, then making a kind of ruling/determination.

        A – I don’t truly believe that was such a typical procedure as Reich made it appear and B – apparently now, instead of OPR findings, appellee response, OPR rebuttal and career lawyer making his own personal “judgey” findings that would be final within the department they are instead following a process whereby the OPR report itself is being re-written.

        115 – Yeah, remember that he didn’t have any problems with Kyle or Monica either, and rather than defend the USAs they were axing, he was the shoulder they went to, to cry on. It’s worse than Skull and Bones over there at DOJ.

        • JasonLeopold says:

          Mary, here’s one more letter. This one from Acting Asst AG Faith Burton sent to Durbin and Whitehouse last March:

          In addition, during the course of the investigation, counsel for the former Department attorneys asked OPR for an opportunity to review and comment on the report prior to any disclosure of its results to Congress or the public. Attorney General Mukasey and Deputy Attorney General Filip likewise requested that OPR provide the former Department attorneys with such an opportunity. For these reasons, OPR is now in the process of sharing the revised draft report with them. When the review and comment period is concluded, OPR intends to review the comments submitted and make any modifications it deems appropriate to the findings and conclusions. OPR will then provide a final report to the Attorney General and Deputy Attorney General. After any additional review they deem appropriate, the Department will determine what disclosures should be made. Due to the complexity and classification level of the draft report, the review process described above likely will require substantial time and effort.

          • bobschacht says:

            Thanks for this. But is the procedure defined in this letter now obsolete? Because Isikoff & K’s article seems to suggest that Margolis has been given final editing rights. I hope, however, that the procedure described in this letter is correct.

            As I suggested above, it may be that how the changes are formatted and presented (i.e., as codicils or appendices, rather than as changes to the OPR text) will be a significant issue.

            Bob in AZ

        • JasonLeopold says:

          Mary, I’m also reminded of this report from Isikoff in February of last year. He quoted an unnamed Bush lawyer (I believe Marcy opined that it was probably Addington) which given the turn of events is interesting:

          “OPR is not competent to judge [the opinions by Justice attorneys]. They’re not constitutional scholars.”

          Could that have factored in at all to the changes in the conclusions and recommendations? Unless OPR believes they are in fact incompetent.

          And then Isikoff had this detail:

          One of the lawyers said he was stunned to discover how much material the investigators had gathered, including internal e-mails and multiple drafts that allowed OPR to reconstruct how the memos were crafted.

          So they had quite a bit of evidence to establish, after more than four years of investigating, violation of professional standards and Obama’s DOJ in less than a year just wiped that all away.

          • bmaz says:

            I’m sorry, it just doesn’t take a freaking Constitutional scholar (and that is a term bandied about pretty loosely these days) to sort through this. What a bunch of bull; all it takes is a reasonably educated and informed lawyer with a measure of ethics. In the case of Margolis, he is either lacking the latter to some degree or he would not have let himself be so presumptuous as to make the final call on something he had a personal interest in.

            • JasonLeopold says:

              Yes. You’re right. I guess in a way I am not looking directly at what you pointed out to be the obvious. As much as it isn’t a surprise, it is as you noted in your post “painful.”

            • JasonLeopold says:

              by the way, Jeff Kaye, in the comments of his post over at the Seminal, writes:

              Another instance I did not discuss in the article involves Holder and Margolis acting together to spike a serious investigation into the Waco disaster, and in particular after it was discovered the FBI and DoJ had lied for years about using military incendiary devices at the Branch Davidian siege.

          • Mary says:

            Your spec touches on one of the only things I’ve been interested in vis a vis the OPR report – how much they are going to hang the torturers out to dry to protect the lawyers.

            There are some ways to approach the opinions in a very very narrow sense to make the actions of the lawyers less contemptible. But when you do that – you pretty much lay everything that goes an inch beyond the mile taken in the opinions as open to prosecution.

            I’ve always thought that the reference to the OPR not being constitutional scholars (note they didn’t say constitutional lawyers) was pretty interesting. It comes from someone who isn’t concerned with Constitutional law, but rather how the Constitution works from a power and leverage standpoint – someone who studies the Constitution as a vehicle for power, not from a legal analysis standpoint.

            This was a really interesting circle in a circle for the Yoo opinions. He starts from a premise that no one wants to do what is being described unless they have a “legal opinion” telling them it is ok (well, we know they were already torturing, but still, that was the concept pushed). They need that legal opinion bc everyone involved has accepted the fact that without it, they are looking at possible civil and criminal liability. Everyone involved wants that opinion – and yet what Yoo puts in is basically a “golly, why does everyone want this opinion when we all know that the President can authorize anything without regard to statutes enacted by Congress or case law decided by courts.” IOW, Yoo is saying that no one needs a Constitutional lawyer or Constitutional law analysis, bc the President is beyond the law.

            In any event, OPR lawyer – almost any lawyers – would be competent to pass on actions and activities, but this argument of who is better able to decide if the opinions were just “so bad” that they were a breach of duties has always been a bad frame for investigation.

            There are a lot of specifics, though, that could be addressed and won’t be. For example, knowing what he knew about Abu Zubaydah’s interrogation, what duties did Yoo have with respect to the warrants sworn out for Padilla’s arrest and the underlying coercion (even if he thinks he can avoid the word torture) used to justify that arrest. What duties did Yoo have to offer up the underlying coercion with respect to the continuing affidavits and representations to Luttig for the continued detention?

            There are a boatload of specifics of conduct that could have been raised with respect to Yoo and which OPR would be very competent to address – but they aren’t a part of the scope of the investigation on the memos themselves. The big issue is not the memos IMO. It never was. It was using the power of the Executive to covertly and intentionally neutralize the other two branches of government. There are all kinds of specific obligations Yoo had as a lawyer to the courts and as a DOJ lawyer to Congress that he breached in the effort to keep the torture regime from ever being reviewed by the other branches. Those are the actions that should have been addressed.

            It reminds me a lot of all the pomp and nonsense re: the USAtty firings. No one ever addressed the central statutory and Constitutional issue — no one in Congress or in the Press Briefings ever just asked “So, Bush said when he was first advised of the story that he had nothing do with the firings, Tony Snow said the same on his behalf, but then he began to say that USAs serve at his pleasure – – so, “Did President Bush (as required by statute) fire the USAs, Mr. Gonzales?” Congress wrote the statute that only the President can remove a USA, it’s damn entitled to know that the President lied when he first said he didn’t fire them – or to know that he’s covering for someone with his indirect “USAs serve at the pleasure of the President” that never says who fired them. It wouldn’t have been hard to frame that specific issue and hold feet to the fire – instead we got a lot of nothing.

            With Yoo we are getting some similiar patterns. Ignore the concrete and embrace the fuzzy. When Paul Clement told the Sup Ct that we didn’t torture or do things like torture, a twentyish yo kid who died during torture had been disappearend into an unmarked, undislosed grave for a long long time. No one who knew that we tortured him to death as a matter of Exec branch policy ever corrected that record. Any corporate lawyer doing something half so egregious in a District Court would lose their license.

            • JasonLeopold says:

              Mary, your comments are so incredibly insightful!

              This is interesting to me:

              Everyone involved wants that opinion – and yet what Yoo puts in is basically a “golly, why does everyone want this opinion when we all know that the President can authorize anything without regard to statutes enacted by Congress or case law decided by courts.” IOW, Yoo is saying that no one needs a Constitutional lawyer or Constitutional law analysis, bc the President is beyond the law.

              One of the arguments that’s been made is that Yoo held these views well before he arrived at OLC.

              • bobschacht says:

                One of the arguments that’s been made is that Yoo held these views well before he arrived at OLC.

                Which is pretty much why he was hired at OLC, right?

                Bob in AZ

  37. Mary says:

    More ramble –

    While I always thought that the memos themselves were a not a good central investigation issue – I do think there are a boatload of good issues – ethics and criminal – where you can have much harder lines to deal with and put the bad guys on the wrong side of those lines. There were all kinds of misrepresentations to Congress and the Courts, there were all kinds of failures to preserve and even knowledge of destruction of evidence – all without notification to the courts. How many lawyers in DOJ and the Exec (and lawyers like Harman in Congress who had been briefed on things like the torture killing in Afghanistan of a 20 something who wasn’t a member of alQaeda) sat back and let Clement make the bald faced lie to the Sup Ct that the US doesn’t torture and doesn’t do things like torture. I don’t mean how many knew about the Abu Ghraib pics – I mean how many knew about anal assaults, drugging, torturing and freezing to death, the torture that went wildly beyond the bounds of even the memos or was not even mentioned in the memos, renditions specificially to torture, etc.

    The topic always should have been, IMO, a combined Congressional and COurt investigation into the veracity of the Exec branch and particularly it’s lawyers in communications with Congress and the courts. And that one would have clear crimes laid out (most with statutes now expired, but some, like the known torture killings, where there is no statute) and clear violations of professional ethics – you don’t have the Qualcom Broadcom types of situations with the courts reactions to those and yet let DOJ lawyers get by with sitting on evidence of torture and torture deaths and not producing that in response to very clear court orders and also let them get by without outright lies to the Sup Ct, the standards get very clear cut and aren’t the fuzzy touchy feely standards of how good or bad an opinion is, or is not.

    I also would be very interested in whether or not the OPR investigation looks into the issue of continuing duties (I’d say it won’t) of Bybee and Yoo to go back and correct their earlier advice to their client in light of the later Sup Ct decisions. Given that Yoo still pens articles on how the Sup Ct is wrong and he is right about the President’s power – I have to wonder how that fits in with his duties to his client. Won’t be touched on I’m sure.

    • bmaz says:

      Hard to see how continuing duty of candor and amendment of record could be covered and reach the result of no material misconduct.

  38. JohnLopresti says:

    I like the microscopic view of erosion metered ‘hourly’ on the DoJ Integrometer @90 supra [bmaz].

    JB has excerpted a Yoo-JStewart transcript questioning the Newsweek defusing leak.

    Likely, old news, though I just located at Center for Constitutional rights, a authorhsip contributor November 2009 International Center for Transitional Justice 504KB report has reduced the torture regimens to wall charts circa p.57.

  39. Leen says:

    ” Mike Isikoff and Dan Klaidman have made sure the torturers and their enablers can have a comfortable weekend though”

    Too bad Isikoff does not take “torture” as seriously as lies under oath about blowjobs. He was all over that story and pushing (not so subtly) for impeachment.

    Holding those responsible for torture not so important.

    How many ways can they prove that these people are above the law?

  40. Leen says:

    “While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources. (Under department rules, poor judgment does not constitute professional misconduct.) The shift is significant: the original finding would have triggered a referral to state bar associations for potential disciplinary action—which, in Bybee’s case, could have led to an impeachment inquiry.”

    “poor judgment” ripping up the Geneva convention…”poor judgement” What a crock.

    How important is the timing of this judgement before the KSM trial?

  41. Gitcheegumee says:

    I just posted this over at the Seminal ,among other coments, re: the torture memos.I hope no one minds if I post some of the entries here,also.

    I am getting confused on these Margolis threads-seems like there’s three running concurrently,so far.

    NOTE: Jack Goldsmith was an assisstannt Attorney General in the OLC who resigned after nine months over what he considered overbroad interpretation of the law regarding Geneva Conventions.

    “Jack Goldsmith himself claims that he largely succeeded in correcting what he saw as overbroad legal opinions issued by his predecessors at OLC. In his book, The Terror Presidency, he claims he resigned partly in an attempt to ensure those corrections stuck and partly because he felt he had lost the confidence of administration leaders. He does not specify who those leaders were, but notes that White House Counsel Alberto Gonzales several times asked him to remain while David Addington, then the legal counsel to the Vice-President and an influential White House figure, was concerned with how often he had overturned previous OLC opinions.[6]

    The Terror Presidency

    Goldsmith is the author of The Terror Presidency, a book that details the legal issues the Bush administration faced in the war on terror, including the definition of torture, the applicability of the Geneva Conventions to the war on terror and the Iraq War, the detention and trial of suspected terrorists at Guantanamo Bay and elsewhere, and wiretapping laws. Though he is largely sympathetic with the concerns of the Bush administration’s terrorism policies, his primary claim is that the administration’s focus on the hard power of prerogative rather than the soft power of persuasion had been counterproductive, both in the war on terror and in the extension of effective executive authority. Some of the assertions made in the book include that the Chief of Staff to Vice President Dick Cheney, David Addington, at one point said that “we’re one bomb away from getting rid of that obnoxious court,” referring to the secret FISA court that rules on warrants for secret wiretapping by the United States government.”[2]


  42. Gitcheegumee says:

    US lawyers persuaded Lord Goldsmith to change his mind on Iraq war

    Nico Hines and David Brown

    Tony Blair only got the “green light” to invade Iraq after his Attorney General visited Washington and was told by US lawyers that he was wrong to oppose the war.

    Lord Goldsmith told the Iraq Inquiry today that he altered his advice a few weeks before the bombing of Baghdad after a series of meetings with American legal advisors. He had initially warned that United Nations resolution 1441, passed in November 2002, did not provide a legal basis for overthrowing Saddam Hussein.

    He changed his mind in February 2003 after compelling evidence from senior US officials and advisors – including national security adviser Condoleezza Rice and Will Taft IV, a senior State Department legal official. Lord Goldsmith said their description of the negotiations that lead to the Security Council resolution helped convince him that a second resolution was not required.——————

    US lawyers persuaded Lord Goldsmith to change his mind on Iraq war …Jan 27, 2010 … Tony Blair only got the “green light” to invade Iraq after his Attorney General visited Washington and was told by US lawyers that he was …


    NOTE: DO NOT confuse Jack Goldsmith,an American AAG with Lord Goldsmith, the British Attorney General.

    But it is pretty coincidental.*G*

  43. JasonLeopold says:

    The Washington Post has just weighed in

    This is interesting:

    Upon taking office in 2009, President Obama’s Attorney General Eric H. Holder Jr. assigned the hot-potato project to his new leader of the professional responsibility office, veteran D.C. prosecutor Mary Patrice Brown. Brown took months to carefully review and revise the lengthy report, and her conclusions eventually went to a senior career lawyer in the department.

    • Mary says:

      I like how they say her report “went to a senior career lawyer in the department” as if that “dept” were the same as the Prof Responsiblity Office as opposed to just being the Dept of Justice.

      It’s a very interesting point to me – and I beat on it some above – that Holder asked OPR to investigate – then took the report away from the Office that investigated and had it re-written outside of OPR before being issued. I don’t see how you have an OPR investigation when you pull the work product from them and have someone who is not in OPR and definitely not “career” at OPR redo the report.

      What you won’t be seeing – anyone at OPR ponying up with a letter of protest or resignation.

      • bmaz says:

        This is a comment I put over at Jim White’s very nice Seminal post:

        Somewhat telling that the guy tasked with doing the “final review”, after the thing had been reviewed and commented on to death internally in OPR for years, was a guy who was one of the highest leaders and supervisors in the Bush DOJ in which the targets served and worked in. One of the guys (Margolis) responsible for Yoo, Bybee and the OLC’s work was the one given the opportunity to whitewash it and sweep it under the rug. Very convenient eh? What a shock that he strained to not find misconduct by his own troops.

        • JasonLeopold says:

          Mary, here’s the letter from DOJ’s Ronald Weich to Durbin and Whitehouse where he also talks about the CIA reviewing the report (which Marcy wrote about last year) and the appeal process in general.

          In the past, former Department employees who were subjects of OPR investigations typically have been permitted to appeal adverse OPR findings to the Deputy Attorney General’s Office. A senior career official usually conducted that appeal by reviewing submissions from the subjects and OPR’s reply to those submissions, and then reaching a decision on the merits of the appeal. Under this ordinary procedure, the career official’s decision on the merits was final. This appeal procedure was typically completed before the Department determined whether to disclose the Report of Investigation to the former employees’ state bar disciplinary authorities or to anyone else. Department policy usually requires referral of OPR’s misconduct findings to the subject’s state bar disciplinary authority, but if the appeal resulted in a rejection of OPR’s misconduct findings, then no referral was made. This process afforded former employees roughly the same opportunity to contest OPR’s findings that current employees were afforded through the disciplinary process. While the Department has previously released public summaries of OPR reports under some circumstances, public release of the reports themselves has occurred only rarely. In the past, the release of a public summary occurred only after the subjects were afforded an opportunity to appeal any adverse findings. The Department currently is reviewing some of these procedures, but the described process has been the historic practice.

      • bobschacht says:

        What I don’t get about this is that they pulled the OPR report out of OPR’s hands, apparently to have it watered down by Margolis, but then some people are also claiming that Holder can’t edit the report himself. If Margolis can edit it, why not Holder?

        I think they should release the *OPR* report, as it was, and tack on whatever forewords and appendices and postludes they want. Furthermore, I suspect the Isikoff piece was meant as a shot across the bow of Holder, to give other senior staff at DOJ an opportunity to run screaming to his office that he better think twice about what he chooses to release. As I suggest above, how the post-investigation changes are formatted and presented will make a great deal of difference.

        Bob in AZ

        • Mary says:

          some people are also claiming that Holder can’t edit the report himself. If Margolis can edit it, why not Holder

          Exactly – especially since Holder has made up a new process for this OPR investigation anyway. Ultimately, DOJ is his department. He is constrained by statute – none of which would prevent him from playing the role you note (as a matter of fact Ashcroft was blithe about the violations of statute he authorized – here there is no statute to be violated by Holder’s participation).

          He would maybe be constrained by reg – I don’t have good access to regs DOJ may have on OPR review. I’d actually be a little surprised if there was not something like the procedures described in the earlier letter to Durbin laid out in regs (a formal internal appeal process). If so, it would be nice to see what those regs are – I guess I can try some google. If there are regs, basically you’d expect Holder to be constrained by them as a practical matter at least. If he is operating outside of the regs for an appeal process on OPR investigations, that would be worth knowing.

          I have a hard time believing that regs allow for the extra-department rewrite of an OPR investigation. More typical would be something kind of like what you got in the Gonzales Jan 2002 memo to Bush – saying here’s the OLC (OPR) position, here’s the State Dept (Yoo,Bybee, Bradbury, Levin et al) position, and here’s my recommendation based on who I think has the better argument.

          What would be very interesting would be to see the requests filed with DAG for appeal under what was laid out as the process, and also the delegation to Margolis for the review.

          Transparency – not so much. Of course, if these guys have been signing off on Obama’s assassinations, then I can see where they may have decided not to look beneath too many rocks these days.

  44. Gitcheegumee says:

    Office of Legal Counsel

    The office provides legal opinions and advice to the president and the executive branch on legal issues of special importance or complexity, including the limits of executive power.

    According to Jack Goldsmith, one consequence of OLC’s “power to interpret the law is the power to bestow on government officials what is effectively an advance pardon for actions taken at the edges of vague criminal statutes.”[5]

    Goldsmith resigned after 9 months. Some claimed that he resigned after a failed attempt to moderate what he considered the constitutional excesses of the legal policies embraced by his White House superiors in the war on terror.[2] Wiki

    Note: In Jason Leopld’s superb piece, there is reference to Goldsmith and the OPR,originally written in 2004.

  45. pmorlan says:

    If the Isikoff report is true I wonder if anyone at the DOJ will resign in protest or whether they will all go along to get along? I really don’t know how these people can look at themselves in the mirror. I hope they all have nightmares about torture every night for the rest of their pathetic lives. They are true cowards and don’t deserve to even lick the bottom of the boots of those brave citizens who risked their careers to help uncover what our government did in our names. I only hope I live long enough to see all of these cowards publicly shamed for their role in this cover-up.

  46. Gitcheegumee says:

    Did Jack Goldsmith ever do a book salon at FDL regarding his book , “The Terror Presidency”?

    That would make for a fascinating interview,imho.

  47. JohnLopresti says:

    re gitc@122; ew wrote extensively after reading it; bmaz also commented numerous insights, re law of admiralty expertise of prof Goldsmith. The threads proved contentious. There were a lot of contempt of congress charges never brought from that era’s aftermath, and lots of witnesses who refused to appear at hearings. Bailiff, bailiff…I think a lot of the material may be at tnh, as well. The sea, floating gaols. Elliptical stories; maybe there were subsequent posts which I missed on fdl, second part of 2009, though the book was published and threads covered its ecclectic history long before 2009. Video might be a better venue than the linear selectivity of the salon format.

      • Mary says:

        Yeah – Mr. “Sure you can violate Article 147, as long as you don’t violate it too long and get caught.” Gitchee – I don’t think he had problems with violations of the Geneva Conventions or defining depravity with smiley faces – I think he had a problem with violation of US law esp in an election year when he was worried about Bush losing and with violation of FISA esp with Lambert and Kollar-Kotelly in the know on those vioaltions. IMO, FWIW.

  48. PJEvans says:

    What’s the best way to re-route the Potomac through DC, without damaging the residential neighborhoods of the non-rich-and-non-powerful and the Mall?

  49. timbo says:

    The fact is that it is unlikely that Margolis is clean. He reported to both Simpson and Goodling. He was there when all this stuff was going on. And what was he up to before that. Just because someone is following the law does not mean they always do or always have. My guess is that there is some blackmail stuff with Margolis…or he himself is a supporter of what they did in our name, namely the torturing and murdering of innocent people in secret prisons.

  50. JasonLeopold says:

    I can’t help but go back to this speech Holder gave in June 2008 during a speech at the American Constitution Society on the rule of law.

    Holder said “we owe the American people a reckoning” as a result of Bush administration lawlessness with regard to torture and warantless wiretapping. “We have, quite frankly, lost our way with regard to this commitment to the Constitution and to the rule of law,” Holder added.

    Here’s the video. He obviously was speaking rhetorically when he made those remarks.

    • bmaz says:

      Before and after his nomination, and prior to confirmation, I wrote a series of posts blasting Holder and trying to convey that he was a horrid choice for AG. That damn ACS speech was thrown at me constantly by folks claiming I was shrill and should trust Holder (and Obama the Constitutional scholar); but there was never very much substantive in Holder’s history to indicate he really meant any of that lofty rhetoric. In fact, Holder’s history was consistently as a bureaucrat beholden to powers that be – exactly what he has continued to display.

      • JasonLeopold says:

        Sorry to bring that up again. I am going to check them. As the months go on it takes on new meaning, for me at least, the older posts. May be worth reposting them just to say, “see. Told ya.”

        • JasonLeopold says:

          To be perfectly honest, I was absolutely unaware of the ACS conf until Holder was nominated last year and used his statements to report how he went back on his word when he limited the scope of Durham’s investigation. But I always think it’s a good thing to throw comments like Holder’s back in his face to show how he’s a fraud.

        • bmaz says:

          These are the ones I could easily find, there may have been others too that didn’t get caught by my quick search:

          Why Janet Napolitano Is Right For Attorney General
          By: bmaz ON Thursday November 6, 2008 2:15 am RANK: 200

          Obama’s Long Arm/Short Arm Stiff Of The Netroots
          By: bmaz ON Wednesday November 19, 2008 4:32 am RANK: 200

          Fold The Holder Nomination
          By: bmaz ON Sunday November 30, 2008 2:01 am RANK: 210

          BREAKING: Rove To Lead The Good Fight Against Holder
          By: bmaz ON Sunday December 14, 2008 2:04 am RANK: 210

          Eric Holder’s New Pardon Controversy: Oops He Did It Again
          By: bmaz ON Friday January 9, 2009 9:44 am RANK: 210

  51. Jeff Kaye says:

    Re Holder and Margolis, it’s interesting that they have worked together before to unhinge or fix an investigation. In this case, it was after the 1999 revelations about the Waco siege, viz. that incendiary military rounds were used in the assault. From a comment at my Seminal/FDL post:

    Margolis is “clean” only if you wish to ignore, for instance, his actions in certain areas, as in the DoJ persecution of Peltier.

    Another instance I did not discuss in the article involves Holder and Margolis acting together to spike a serious investigation into the Waco disaster, and in particular after it was discovered the FBI and DoJ had lied for years about using military incendiary devices at the Branch Davidian siege.

    This from a 9/15/99 Washington Post story:

    The Justice Department has removed the entire U.S. Attorney’s Office for the Western District of Texas from further work related to the 1993 siege of the Branch Davidian compound near Waco, Tex. The broad recusal is intended to avoid conflicts that could impede a fresh investigation being led by former senator John C. Danforth (R-Mo.), a senior Justice Department official said yesterday.

    Deputy Attorney General Eric H. Holder Jr. said U.S. Attorney Bill Blagg, whose office handled the criminal trial of the Branch Davidians in 1994, requested that his Western District office be recused from further work on Waco. Holder said that it is routine to approve recusal requests and that David Margolis, the senior department official who handled the details of the matter, told him he had never turned down a recusal request….

    One of the attorneys in Blagg’s office who is being recused is Assistant U.S. Attorney William Johnston, who recently sent Attorney General Janet Reno a strongly worded letter warning that she had been misled by people within her department about the Waco siege. Holder said the broad recusal had nothing to do with Johnston’s letter.

    Holder, who is second-in-command at the Justice Department, has been overseeing the Danforth probe since last week, when Reno recused herself from the matter because she too anticipates being a witness in the Danforth inquiry.

    I’d say that Margolis’s “clean” reputation has been meticulously assembled, and I’m sorry if there are progressives who fell for it. Until I investigated further, I had no reason to question it myself. It goes to show that received wisdom if often not wisdom at all, and that we need to have a curious mind when it comes to acceptance of good intentions by this particular government (or maybe any government).

  52. Gitcheegumee says:

    This is somewhat off topic, but still somewhat germane…conflict of interest.

    If I may:

    As has been posted on the teabugger threads, O’Keefe has representation of Superlawyer Michael J. Madigan.

    According to Madigan’s firm’s website he,(Madigan),represented an employee of Chiquita Banana.

    Now,didn’t Eric Holder represent Chiquita Banana also, regarding the corporation’s allegations of funding South American contra groups deemed terrorists – while at Covington Burling-BEFORE he was named AG?

    Does anybody know if Holder and Madigan were working the same case(s) at the same time regarding Chiquita?

      • dakine01 says:

        I think we’re dealing with two different Michael Madigans. The Michael Madigan whose daughter is the Illinois AG is the Illinois Speaker of the House (doncha just love Illinois politics?).

        The Michael Madigan who is O’Keefe the pseudo pimp’s attorney is a high powered DC type

    • klynn says:

      Michael Madigan was a signee on a letter of endorsement for Holder as AG.

      But I have to do some more homework to answer your question.

  53. JasonLeopold says:

    Bmaz circa Nov. 29, 2008:

    Holder didn’t represent a charged criminal with protected rights in relation to an active prosecution, he conspired with an unethical and corrupt Justice Department to cover up and conceal crimes. This is a far cry from the heroic zealous public defender type of representation Glenn Greenwald, and others, are painting for Holder.

    No, Holder is a lot closer to a mob consigliere than principled defender of justice. He should be treated as such. And if you want the Department of Justice to get serious about business and financial fraud, which this country desperately needs, we sure need someone diametrically different than Eric Holder.

    That resonates so much more now. How right you were.

  54. Gitcheegumee says:

    There’s a really interesting EW thread from the EW archive here,entitled “Chertoff Keeps Waiving Laws” that is pretty much on point with this discussion .

  55. bobschacht says:

    Sorry for my late run of comments; just one more.

    I just got through watching Schindler’s List, for the first time. This movie illustrates the idea that even a fascist bastard like Schindler can be redeemed. And that’s not just my opinion: in 1958 he was declared one of the Righteous persons and planted a tree at Yad Vashem. This redemption thingy is important to me as a Christian: that is, it is important to me, as a basic principle of theology, that no one is beyond redemption.

    So before we all pronounce judgment on Obama, Holder, Rahmbo, and even Margolis, Bybee, and Yoo, the last chapter is not yet written. Obama’s presidency is only at the beginning of the second year of a four year term.

    I don’t mean to suggest that we shrug our shoulders and do nothing. We should, in fact, do everything we can think of that might help the situation. And Holder should get up off his ass and do the right thing, too. But final judgment is premature.

    Oh, and I “spotlighted” Jeff Kaye’s blog on Margolis over at The Seminal to ten Justice and Legal reporters. Sounds like we have a few other blogs, like this one, and Jim White’s, that deserve to be spotlighted, too.

    OK, I’m done for the night.

    Bob in AZ

    • bmaz says:

      That is exactly what people were saying one year ago when I was already pointing out how in the first days of his Administration Obama was setting the course toward adoption of Bush’s cancerous obstruction and obfuscation in court cases on wiretapping and surveillance. Said “oh Obama just doesn’t have his people in yet, don’t worry” and “it is all Bush left behinds, don’t worry” and “he is playing eleven dimensional chess to get the courts to do the work for him” and “give him time, he just started”. It was a bowl of dung then, still is.

      • bobschacht says:

        I think it might be useful to differentiate from what Obama, et al., has *done*, to date, from a final judgment about the man himself and his presidency. I think your assessments are absolutely right about what he has done, and not done. And I agree that the indicators are not good, and not promising. However, I suspend final judgment about Obama himself, or his presidency. I think we have a mixed bag.

        Bob in AZ

    • Mary says:

      I understand your points and on some things I’d agree, but as Obama has been drawn into the assassination “game” including signing off on targeting Americans for assassination, and as positions are being taken in courts that set precedents and as he deliberately plays out statutes of limitations while evidence is allowed to evaporate and while he chooses to surround himself with men and women who choose assassination and bombing families over law, many things become irreversible. Big ships turn slowly and individuals and the damage they do to their souls is a different matter than institutions and damage done to their credibiilty.

      Even on a individual level, though, there is something very fundamental about choosing to applaud and support driving the nails through the wrists. It’s a choice that has irreversible consequences.

  56. bobschacht says:

    Although this is an old thread, this may be the most appropriate place for a few quotes from the late great Howard Zinn, from Roy J. Eidelson,
    President, Psychologists for Social Responsibility, from recent years that seem especially important today for our work together.

    “The challenge remains. On the other side are formidable forces: money, political power, the major media. On our side are the people of the world and a power greater than money or weapons: the truth.

    Truth has a power of its own. Art has a power of its own. That age-old lesson – that everything we do matters – is the meaning of the people’s struggle here in the United States and everywhere. A poem can inspire a movement. A pamphlet can spark a revolution. Civil disobedience can arouse people and provoke us to think, when we organize with one another, when we get involved, when we stand up and speak out together, we can create a power no government can suppress. We live in a beautiful country. But people who have no respect for human life, freedom, or justice have taken it over. It is now up to all of us to take it back.”


    “To be hopeful in bad times is not just foolishly romantic. It is based on the fact that human history is a history not only of cruelty, but also of compassion, sacrifice, courage, kindness.

    What we choose to emphasize in this complex history will determine our lives. If we see only the worst, it destroys our capacity to do something. If we remember those times and places—and there are so many—where people have behaved magnificently, this gives us the energy to act, and at least the possibility of sending this spinning top of a world in a different direction.

    And if we do act, in however small a way, we don’t have to wait for some grand utopian future. The future is an infinite succession of presents, and to live now as we think human beings should live, in defiance of all that is bad around us, is itself a marvelous victory.”

    Bob in AZ

  57. JohnLopresti says:

    @170, some of your writing is as insightful as Zinn*s. Somehow, the first-person voice, the individual speaking from the strength of interior energy, has the most immediacy and relevance. The gentleman of the law of the sea did about as much as his conservative conscience could. The rest was providing cover for folks who would sacrifice democracy for their personal thrill regime until Obama won the election that saw their annointed successors fail. Roveco now includes Jeb Bush, Norm Coleman, per Wall St Journal. I hope ACLU pursues the OPR redaction process to reveal the dynamic of the current ongoing coverup.