From Roger Fitch and our friends down under at Justinian

Roger Fitch Esq • March 11, 2010

Our Man in Washington

Prez Obama’s “alternative” national security police is in ruins … John Yoo cocky after getting a clean bill of health from DoJ fixer … Clarence Thomas’ chambers a breeding ground for torture lawyers … Another Cheney chucking muck

The Republican Lindsey Graham of South Carolina is reportedly “helping” Barack Obama solve his “Guantánamo problem”, by forcing the 9/11 defendants and other detainees out of the indisputably valid courts and back into the dodgy military commission system.

The quid pro quo? Graham stops white-anting Obama’s professed plan to close Guantánamo.

Yet it’s unclear why Obama needs Lindsay Graham. He has 59 of the 100 senators, and only a handful of them are backsliding “Blue-Dog” Democrats.

Senator Graham is frequently portrayed as knowledgeable on military law – he’s a former judge advocate and active in the Air Force Reserves. However, he seems remarkably ignorant of the US constitution’s restraints on military interference in domestic law.

That’s why he’ll threaten to support the Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010 introduced by his colleagues in the Senate.

It’s hard to count the number of ways the McCain-Lieberman Bill is unconstitutional.

For starters, it authorises the military to seize, interrogate and potentially hold indefinitely certain accused criminals (not necessarily belligerents) in or out of the US, without advising them of their legal rights or allowing them lawyers.

Jurist has more.

Having to enlist your enemy for help is emblematic of Mr Obama’s dilemma: how to govern without leading.

Reading between the lines of mainstream media stenography, you sense that Obama’s “alternative” national security policy is in ruins.

Meanwhile, debris from the Bush Regime, never removed, piles up every day. Tangible evidence of the last government’s crimes lies in the street, festering.

On February 14, for instance, Dick Cheney (snap), former VP of the US, confessed to torture on national television, and nothing happened.

One of Cheney’s freely admitted victims was Abu Zubaydah, who appears to have had the first of his 83 partial drowning experiences well before worthless justifications for torture were cooked up by Mr Cheney and John Yoo.

Equally undaunted, Mr Yoo, oblivious of Nuremberg precedents for lawyers concocting criminal policies, is boasting in a new book about his policy role in fixing up the law around the Cheney/Bush torture requirements.

Perhaps Yoo has reason to be cocky.

As expected, the final recommendation in the report of DoJ’s Office of Professional Responsibility gave the torture architects Yoo and Judge Jay Bybee a more or less clean bill of health for their opinions justifying torture when they worked for the Office of Legal Counsel.

The OPR report’s mild recommendations that Yoo and Bybee be referred to bar associations for discipline was overruled by a career Justice Department fixer, David Margolis, who opined that incompetence and poor judgement, not ethics violations, were involved.

The DC bar’s most important ethics rule, against counseling a crime, was not even considered by OPR.

As legal ethicist David Luban notes, Margolis dismissed the relevance of the leading federal court case, directly in point on water torture, United States v Lee.

In preparing their opinions, Bybee and Yoo ignored this precedent, an action that could not have occurred in good faith as the case comes up instantly when torture is researched.

Scott Horton contrasted OPR’s treatment of Yoo and Bybee with that meted out to Jesselyn Radack (pic), the only DoJ lawyer referred for state bar discipline.

Ms Radack’s offence? As the DoJ legal ethics adviser in 2001 she fruitlessly ruled that the “American Taliban” John Walker Lindh had a right to see the lawyer his lawyer father had retained for him.

Congress immediately announced it would investigate the current ethical lapse by DoJ’s ethics watchdog.

The chutzpah of John Yoo meanwhile is unbounded.

According to Yoo, his torture advice has been vindicated.

In The Wall Street Journal he’s gone further, and claims he did Obama a favour.

The OPR report has been posted on the House Judiciary Committee website, together with the earlier, highly critical, drafts that were rewritten to exonerate Yoo and Bybee.

The OPR report reveals a lot we didn’t know, e.g. the names of additional torture lawyers and consultants and here.

Emptywheel couldn’t help noticing that (Jay Bybee aside) the four leading torture lawyers had all been law clerks for Supreme Court Justice Clarence Thomas (snap).

Thomas, like Justice Antonin Scalia, does not believe that the eighth amendment’s proscription of cruel and unusual punishment applies to acts other than judicial punishments.

The LA Times has more.

Among the many disclosures in the OPR report is Yoo’s courageous view that presidents can properly order civilians massacred.

Even more would be known about Yoo’s interactions with the CIA and the White House if his emails had not mysteriously disappeared.

The New York Times thinks this convenient event should be investigated.

The House Judiciary Committee chairman is asking for the White House end of the emails , and CREW – Citizens for Responsibility and Ethics in Washington – wants the originals.

Emptywheel has been looking at the refusal of CIA lawyers to cooperate with the OPR investigation and the saga of the missing documents.

Dahlia Lithwick as well as David Cole and FindLaw’s Writ have more.

John Yoo still faces a civil torture case in San Francisco.

* * *

Salim Hamdan’s successful Supreme Court advocate, Neal Katyal, now appears in the Supreme Court to oppose detainees’ rights, apparently willingly, in his new capacity of Deputy Solicitor General.

Nevertheless, some of the dimmer opposition senators are making much of the fact that DoJ dares employ lawyers who once represented Gitmo prisoners. Can they be trusted?

For the right wing it’s proof that Obama’s lawyers are soft on terrorism and frightfully unpatriotic.

In a lurid McCarthyesque video put out by Dick Cheney’s daughter Liz (pic), these nine lawyers are called the Al-Qaida Seven.

But as National Institute of Military Justice director Eugene Fidell reminds us, the military lawyer who fiercely represented Roosevelt’s despised “Nazi Saboteurs” became Truman’s Secretary of War.

In fact, at least 34 of the 50 largest American law firms have represented Gitmo prisoners or filed amicus appeal briefs in their support.