Jesselyn Radack:The Tesimony You Won't Hear at Today's Senate Judiciary Hearing on Torture

[cal04]

Jesselyn Radack
http://www.dailykos.com/story/2009/5/13/730863/-LIVE-BLOGGING:-The-Tesimony-You-Wont-Hear-at-Todays-Senate-Judiciary-Hearing-on-Torture

This morning, the Senate Judiciary Committee held a hearing entitled "What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration."

I suggest that a more apt title would be, "What Went Right?"

I am not testifying on the panel, but I will be submitting written testimony, which appears at the end.

UPDATE: I'm at the hearing and will be liveblogging below. My testimony is at the bottom.

(snip)
United States Senate Committee on the Judiciary
Subcommittee on Administrative Oversight and the Courts

"What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration"

May 13, 2009

Written Testimony for the Record

Jesselyn A. Radack
Homeland Security Director
Government Accountability Project

Thank you for including my testimony in the written record of today’s important hearing. I have direct, personal expertise on the subject of this hearing. I am a legal ethicist, recognized by the American Bar Association (ABA), who has served on the D.C. Bar Legal Ethics Committee and teaches professional responsibility. As the former Justice Department ethics advisor in the case of "American Taliban" John Walker Lindh, I blew the whistle when my advice to provide him counsel was disregarded and evidence of that advice "disappeared" in contravention of a federal court order. Among other retaliatory acts, the Department’s Office of Professional Responsibility (OPR) referred me to the state bars in which I am licensed as an attorney. Although the Maryland Bar dismissed the charges, the D.C. Bar investigation is still pending after more than five years.

I would like to speak first to the double-standard used by OPR in its investigation of the "torture memos" authored by John C. Yoo, Jay S. Bybee, Steven G. Bradbury and others while they worked in the Department’s Office of Legal Counsel, and second, to the actual ethics violations that they committed.

It is baffling to me that, as things stand now, I am the only Justice Department attorney-advisor that OPR has referred for criminal prosecution and for bar discipline stemming from advice I gave in a torture case—and my advice was to permit a U.S. citizen his rights.

OPR’s DOUBLE STANDARD

The much-awaited, long-delayed, and apparently altered OPR Report of Investigation on the torture memos appears to be on the verge of release.

According to its website, OPR’s mission is to

investigat(e) allegations of misconduct involving Department attorneys that relate to the exercise of their authority to . . . provide legal advice.

But there are a number of irregularities in how OPR has handled this investigation that should give pause to lawmakers, law enforcers and the public.

First of all, why has OPR taken nearly five years to complete its Report, when the memos at issue became public in June 2004? This inexplicable and inexcusable delay is unfair to the subjects of the investigation because the passage of time fades memories, and to the public because the consequences of any wrongdoing are diminished. For the two men for whom bar referrals are being contemplated, John Yoo now has tenure at Berkeley law school and Jay Bybee now has a lifetime appointment as a federal judge. Even if the worst case scenario ensues—disbarment—it is unlikely to affect their careers. One does not need a law license to teach law or be a judge.

Second, why did former Attorney General Michael Mukasey delay the release of the report, a draft of which was completed in November 2008? Apparently, Mukasey and his deputy, Mark Filip, wanted the report to include detailed responses from the subject attorneys. This is contrary to OPR’s own policies and procedures, which state that "an attorney alleged to have engaged in misconduct is interviewed" and given an opportunity "to review the interview transcript and to provide a supplemental written response and additional documents" as part of the investigation, not afterward. In fact, it is only if OPR wants to publicly disclose its findings that an affected attorney is given an opportunity to object, and then only on the grounds of privacy, not substance.

As the target of an OPR investigation, I was not allowed to vet the investigatory report. In fact, OPR admitted that it had not even begun to investigate the allegations against me at the time it referred me to the state bars in which I am licensed. Moreover, contrary to OPR’s own stated policies, it referred my case to the state bars in which I’m licensed absent a finding of professional misconduct, much less a finding of intentional misconduct or reckless disregard of an applicable standard or obligation—the benchmark that OPR uses. Instead, OPR referred me to the bar disciplinary authorities for "possible misconduct" based on a secret report to which I did not have access. To add insult to injury, I was referred for conduct I engaged in as a private citizen, not as a public servant, after I left the employ of the Justice Department.

I was never invited to comment on OPR’s report, much less allowed to see it, and the investigators never considered softening their findings based on my perspective. Nor was I ever advised of, or given an opportunity to submit, a written appeal of OPR’s findings. The post-investigative special treatment in this case is more than an anomaly. It’s a blatant double standard, one that the Obama administration inexplicably endorsed as "typical," "ordinary," and "historic." See Letters of May 4, 2009, to Senators Whitehouse and Durbin from Ronald Weich, Assistant Attorney General.

WHAT WENT WRONG AND THE ETHICS RULES THAT WERE BROKEN

What went wrong is simple. The Office of Legal Counsel (OLC) attorneys were acting as legal advocates instead of legal advisors.

The OLC, which writes legal opinions considered binding on federal agencies and departments and maintains a long tradition of dispensing objective legal advice to its client in executive-branch agencies, authored the so-called "torture memos," which advised the CIA and White House that using enhanced interrogation techniques on al Qaeda terrorists in captivity abroad "may be justified," and that only "serious physical injury, such as organ failure, impairment of bodily function, or even death" constitutes torture.

The torture memos purported to provide objective legal advice to government decision-makers, but their assertions about the state of the law were so inaccurate that they seem more to be justifications about what the authors (and the intended recipients) wanted the law to be, rather than assessments of what the law actually is.

Under the McDade Amendment, lawyers who work for the federal government are bound by not only their own state bar rules, but the bar rules of any state in which they practice. Additionally, under the choice-of-law provision in American Bar Association ("ABA") Model Rule ("Rule") 8.5, the ethics rules to be applied are the ones "in which the lawyer’s conduct occurred" or had its "predominant effect." Id. at Rule 8.5(b)(2). Therefore, although Yoo is licensed by Pennsylvania and Bybee in Nevada, all the attorneys were subject to the D.C. Rules of Professional Conduct because they practiced in D.C. when they worked for OLC.

Different ethics rules apply to the distinct functions of legal advisors and legal advocates. The lawyer-as-advocate is the more familiar role, in which the lawyer may make any legal argument as long as it is not frivolous. The lawyer need not give the court his honest assessment of how the law applies in the case. His only obligation of candor regarding legal arguments is that if his opponent fails to mention directly adverse controlling authority, he must bring it to the tribunal’s attention.

When a lawyer gives legal advice, however, he must comply with ABA Rule 2.1, which governs "Advisors." It states, in part, "In representing a client, a lawyer shall exercise independent professional judgment and render candid advice." Id. The OLC lawyers did not uphold their professional duty of candor toward their client. Their role was not to spin out creative legal arguments, but, as the first comment to the Rule explains, to give "straightforward advice expressing the lawyer’s honest assessment." Rule 2.1, Comment <1>. The commentary recognizes: "Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront . . . However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client." Id.

Similarly, ABA Rule 1.4, which governs "Communication," obligates the lawyer to "explain a matter to the extent reasonably necessary to permit the client to make informed decisions." Rule 1.4(b). The law was obviously not explained adequately to CIA operatives and others, who recently had to be granted blanket transactional (total) immunity from prosecution by the President of the United States. See Peter Baker & Scott Shane, Pressure Grows to Investigate Interrogations, Obama Assures C.I.A. It Won’t be Blamed, N.Y. TIMES, Apr. 21, 2009.

Part of the reason for OLC’s failure may have been that its lawyers did not understand who their client was. The OLC attorneys acted as if the President was their client when, in reality, the OLC lawyers had as their client the U.S. government, governed by ABA Model Rule 1.13, "Organization as Client," rather than any particular office-holder. When White House Counsel Alberto Gonzales requested the so-called "Bybee Memorandum" of August 1, 2002, Gonzales was not the client, but merely a constituent of the organizational client. Although lawyers must ordinarily accept the decisions made by such constituents, the commentary to the Rule makes clear that if "the lawyer knows that the organization may be substantially injured by tortuous or illegal conduct by a constituent member of an organization that reasonably might be imputed to the organization," then the legal ethics rules require lawyers to take action to prevent or mitigate that harm to entity clients. See ABA Rule 1.13, Comment <4>.

Finally, the "catch-all" provision of Rule 8.4(c), which governs "Misconduct" involving dishonesty, fraud, deceit or misrepresentation, enables discipline in situations in which more specific rules do not apply or are inadequate, id., and would most certainly apply here.

If OPR wants to live up to its lofty mission of

ensuring that Department of Justice attorneys perform their duties in accordance with the high professional standards expected of the Nation’s principal law enforcement agency,
it can start with itself.