Image [stolen from here]
The below [found on TPMMucker]
Leahy At OPR Hearing: 'Where Are Mr. Yoo's Emails?'
Justin Elliott | February 26, 2010, 10:20AM
"My first question will be, where are Mr. Yoo's emails?" Leahy said, promising to pose the question to Acting Deputy Attorney General Gary Grindler.
Grindler is the sole witness at the hearing this morning. Leahy added that the DOJ is required by law to retain the emails.
As we noted earlier today, a government watchdog group and the editorial board of the New York Times have called on the DOJ to probe the missing emails.
Leahy also called for a "comprehensive review," saying the Office of Professional Responsibility report on Yoo and Jay Bybee, authors of the torture memos, was insufficient.
"In my view it was the wrong focus. These legal memoranda were only part of the problem," he said. "They were intended to provide a golden shield to commit torture and get away with it."
You can watch the hearing live here. And watch this space -- we'll be keeping an eye on the proceedings.
Late Update: Leahy just grilled Grindler on the email question. We have the rundown on that exchange, and comment from Yoo's lawyer, here.
Here is Leahy's full prepared statement:
It has now been more than a year since I first proposed the establishment of an independent, nonpartisan Commission to engage in a comprehensive inquiry to determine how the United States Government came to authorize torture. Over one year ago, I called for a bipartisan effort to create a nonpartisan commission to conduct a needed comprehensive review. I proposed to take these matters out of politics and find out exactly what happened so we can understand what went wrong and make sure it does not happen again. My regret is that no Republican came forward in that spirit to join in that effort. I said from the outset that without a bipartisan commitment to a fair, independent and comprehensive review it would not happen. That is a shame.
Since that time we have seen more and more evidence of what went wrong during the last administration. We have witnessed the release of more Office of Legal Counsel (OLC) memoranda documenting the authorization of brutal practices, an Inspectors General report that calls into question the guidance given by the Department of Justice, a CIA Inspector General report that reveals even those lax standards were violated during interrogations and last week, finally, the release of the results of the Office of Professional Responsibility (OPR) inquiry into the legal advice given by those at the Office of Legal Counsel. All of these narrower reports point to why we need a comprehensive review. None of them can answer the question of how the last administration veered so far off course and away from American values.
The OPR investigation was limited to determining whether or not legal profession rules were violated. That is the business of bar associations. It is, in my view, the wrong focus. That office within the Justice Department does not have the power or authority to conduct the broader investigation that is still needed. These legal memoranda were only a part of the problem. They were intended to provide a "golden shield" to commit torture and get away with it.
As is now evident, even though the OPR investigation has consumed years, it is not complete. The investigators were denied access to key witnesses and documents. Did they interview David Addington, counsel to Vice President Cheney? No. According to Alberto Gonzales and Jack Goldsmith, he was a key figure. Mr. Gonzales called him an "active player" in the drafting of these memoranda. Did they have the full record of John Yoo's communications with the White House? No. In fact, my first question to the Justice Department witness today will be, "Where are Mr. Yoo's emails, which are required by law to be maintained?"
The fundamental question here is not whether these were shoddy legal memos. They were. The administration famously withdrew the Bybee memo written by Mr. Yoo in advance of the confirmation hearing on the nomination of Alberto Gonzales to be Attorney General. Dean Koh called that memo "perhaps the most clearly legally erroneous opinion I have ever read." Jack Goldsmith called the memos "deeply flawed." David Margolis, the senior Justice Department attorney who provided the final review of the OPR report, did not endorse those memos. The legal work of Yoo, Bybee and Steven Bradbury, the acting head of OLC who reaffirmed the CIA interrogation program, was flawed. It failed to cite significant case law and twisted the plain meaning of statutes.
These legal memoranda were designed to achieve an end. That is not what the Office of Legal Counsel should do, nor had done in other administrations. These Bush administration lawyers lost their way.
In my view President Bush was disserved. These lawyers told the administration what Vice President Cheney wanted to hear. Without question, our government institutions, the Justice Department and, in particular, the Office of Legal Counsel, were undermined. The rule of law was disrespected. Most importantly, the American people were harmed and put at greater security risk. The torture of individuals was not just a violation of our laws and treaties; it handed al Qaeda a propaganda tool to gain new recruits, and it made us less safe.
Just last weekend, General Petraeus said that "the use of the interrogation methods in the Army Field Manual" work, and that when we have "taken expedient measures, they have turned around and bitten us in the backside." He is right. Colin Powell was right. Alberto Mora was right. The many JAG officers who fought these encroachments were right.
Focusing on whether these lawyers failed to meet legal ethics standards misses the fundamental point. The real concern is that lawyers who were supposed to be giving independent advice regarding the rule of law and what it prohibits were instead focused on excusing what the Bush-Cheney administration wanted to do. The OLC is charged to provide, both in times of war and peace, "candid, independent and principled advice -- even when that advice may be inconsistent with the desires of policymakers." These lawyers abandoned their independent responsibilities to become apologists.
The role of the White House in the politicization of the OLC and in ensuring that these opinions delivered the legal immunity they were looking for has yet to be fully explored. My sense is that such a review would reveal the same untoward and corrupting influence we found when we investigated the purging of United States Attorneys for political purposes.
As disturbing as the findings and evidence from this limited investigation are, they are not the final arbiter. We need a true accounting and a comprehensive review. The dark cloud that Patrick Fitzgerald talked about hanging over the Bush-Cheney administration at the end of the Libby trial is still there. The politicization of the rule of law function at the Justice Department is another example of the last administration's corruption of the government. For the country to fully recover from this era we need to know what went wrong so that it does not happen again. Unfortunately, the Obama administration's attempts to repair this office and ensure that its lawyers are providing the government with principled advice have been hamstrung by Senate Republicans who continue to delay appointment of the President's nominee to head the OLC.
I have been conducting oversight of these issues for years, because I was deeply concerned this country was treating people in our custody in a way that went against our laws and our values. That is why I did not hesitate to issue subpoenas for these memoranda when the last administration refused to cooperate, and the release of those memos revealed how they were justifying torture. I will continue that aggressive oversight. I am determined to ensure that no future administration, of either political party, can ever justify torture.
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Rob Kall of OpEdNews.com interviews Scott Horton and Jesselyn Radack
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The below [found here]
|By: Jeff Kaye Thursday February 25, 2010 12:51 am|
“Do you know who the Rosenbergs are?” [the agent] asked.
“I heard of them, yeah, I heard them mention,” Dr. Lee said.
“The Rosenbergs are the only people that never cooperated with the federal government in an espionage case,” she said. “You know what happened to them? They electrocuted them, Wen Ho.”
I couldn’t find much online about Acting Deputy Attorney General Gary Grindler, the man tapped by Sen. Patrick Leahy to appear at the Senate Judiciary’s hearing this Friday, February 26 (H/T Bob in AZ).
The one-day minimal hearing is supposed to show the Senate registering oversight on the OPR report and the Margolis intervention to clear John Yoo and Jay Bybee of "professional misconduct" in the torture memos affair.
Did I say that Mr. Grindler is also considered an excellent attorney, having won the The Best Lawyers in America award in the area of white collar criminal defense?
I also see that he played a minor role in the controversies around the Wen Ho Lee investigation and incarceration. At the time (circa 1999-2000), Mr. Grindler was Principal Associate Deputy Attorney General in Janet Reno’s DoJ. Wen Ho Lee, a Taiwanese-American, had been a scientist at Los Alamos National Laboratory in New Mexico for approximately 20 years prior to his arrest.
The situation was this: the FBI and DoJ had bungled their investigation of possible spy Wen Ho Lee so badly that the supposed evidence in the case was hopelessly compromised. Nevertheless, after he was arrested, Lee was placed under onerous Special Administrative Measures (SAM). Ultimately he spent nine months in strict solitary confinement, until he agreed to a plea agreement on a felony count of improperly downloading Restricted Data. He was released from custody and served no subsequent jail time.
According to a Senate investigation in 2001:
Specifically, Dr. Lee’s confinement consisted of 24 hour supervision by a rotation of guards, permission to speak only with his attorneys and immediate family members (his wife, daughter and son) and in English only, non-contact visits from his immediate family members limited to one hour per week, no personal phone calls, and that he remain secured in his cell 24 hours a day./246/ Further, Dr. Lee was to remain in full restraints (leg and hand irons) anytime he was to be out of his cell being moved from one location to another./247/
As previously noted, Dr. Lee’s lawyers protested his conditions of confinement almost from the beginning.
An Internet site set up to support Dr. Lee elaborated on his situation:
A chain around his belly connecting to his handcuff prevents him from raising his hand above his head. We were told that two U.S. Marshals with machine guns accompanied him whenever he goes within the confine of the prison and a ‘chase car’ with armed Marshals follows Dr. Lee when he is moved from Santa Fe to Albuquerque and back.
The judge who initially denied Dr. Lee a pretrial release, nevertheless admonished the government “to explore ways to loosen the severe restrictions currently imposed upon Dr. Lee while preserving the security of sensitive information.” But the government wouldn’t have any of that. As to the kind of interrogation Dr. Lee received, a small piece of the transcript is quoted at the lead of this article.
When Janet Reno told Gary Grindler that there were protests about Lee not getting enough exercise time, Grindler wrote a memo back to her:
A January 12, 2000 memorandum to the Attorney General from Principal Associate Deputy Attorney General Gary Grindler demonstrates that at least some of the concerns of Dr. Lee’s lawyers were taken to the highest reaches of the Justice Department. The memo notes that the Attorney General had “advised that some individuals have expressed concern about Dr. Lee’s access to exercise,” and explains that the order for Special Administrative Measures that she was being asked to sign “does not limit Dr. Lee’s access to exercise. According to the Santa Fe County Jail rules, Dr. Lee will be limited to one-hour per day of exercise, as are all administrative segregation prisoners.”
I can’t access the memo, but I wonder if Grindler mentioned that the exercise hour was conducted in shackles, and continued so until July 2000.
The Senate Judiciary Subcommittee on Department of Justice Oversight concluded:
While the government may have believed such harsh conditions were necessary, they have not made a convincing case. Judge Parker was not convinced by the government’s arguments, and granted Dr. Lee’s renewed motion for pretrial release on August 24, 2001. In his remarks at the plea hearing, Judge Parker expressed his sentiments, telling Dr. Lee that “since by the terms of the plea agreement that frees you today without conditions, it becomes clear that the Executive Branch now concedes, or should concede, that it was not necessary to confine you last December or at any time before your trial.”
…. After careful review, it becomes apparent that the government was right to reach a plea agreement with Dr. Lee, whose actions did constitute a serious threat to the national security, but was wrong to hold him virtually incommunicado in pretrial confinement for more than nine months.
Not too much to go on here, but Grindler’s association with abusive conditions of imprisonment should be explored, given the nature of his testimony and appearance in this context. But leaving aside Grindler and the issues associated with him, Leahy’s hearing feels almost like a joke, a kick-in-the-teeth to those of use who are extremely concerned and disgusted about the way this country has handled the torture issue. Where is Yoo? Bybee? David Margolis or Eric Holder? These are the people you’d think any competent Congressional committee would call on the carpet. But all the power of Congress these days vis-a-vis the Executive Branch appears it could fit in a teacup.
As psychologist-activist-blogger Stephen Soldz put it in an article on the OPR report and Margolis memo:
A beautiful job, now completed by Obama-Holder Justice Department hack Margolis. Future lawless administrations now have a ready template to use to provide legal rationale for any abuses they desire.
As a postscript to this story, it should be noted that:
In June 2006, Lee received $1.6 million from the federal government and five media organizations as part of a settlement of a civil suit he had filed against them for leaking his name to the press before any formal charges had been filed against him. Federal judge James A. Parker eventually apologized to Lee for the government misconduct of which he had been the victim.
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