Leura Garrett Canary

Crossposted at Oxdown Gazette.

Personal Information: Leura Garrett Canary

  • Name: Hon. Leura Garrett Canary
  • Employment: United States Attorney for the Middle District of Alabama
  • Address: P. O. Box 197, Montgomery, AL 36101-0197
  • Phone: (334) 223-7280
  • Date Admitted: September 25, 1981
  • Law School: University of Alabama

Leura Garrett Canary was nominated by Pres. George W. Bush to be the United States Attorney for the Middle District of Alabama. Since assuming this position in September 2001, Mrs. Canary has failed to adhere to even the most basic tenets of professional conduct required of her by her membership in the Alabama State Bar, beginning with the Preamble to the Alabama Rules of Professional Conduct which states, in part, that

A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process. [Emphasis supplied.]

The following analysis establishes that Mrs. Canary has violated her obligations under the Alabama Rules of Professional Conduct by her continued participation in the prosecution of Gov. Don Siegelman after her supposed recusal from the matter and that her conduct raises a substantial question as to her honesty, trustworthiness and fitness to practice law. Specifically, Leura Garrett Canary violated the following Alabama Rules of Professional Conduct:


Statement of Facts

On November 7, 2008, Rep. John Conyers, as Chairman of the House Committee on the Judiciary, and Rep. Linda Sanchez, as Chair of the Subcommittee on Commercial and Administrative Law, sent a letter to Attorney General Michael Mukasey in which they succinctly set forth the facts under which Mrs. Canary – allegedly – recused herself from the prosecution of Gov. Don Siegelman:

Department of Justice records show that United States Attorney Leura Canary recused herself from the Siegelman case on May 16, 2002. According to the Acting United States Attorney responsible for the case, “In May 2002, very early in the investigation, and before any significant decisions in the case were made, U.S. Attorney Leura Canary completely recused herself from the Siegelman matter, in response to unfounded accusations that her husband’s Republican ties created a conflict of interest.” [Footnote] 15 Mr. Franklin further explained that “Ms. Canary had no involvement in the case, directly or indirectly, and made no decisions in regards to the investigation or prosecution after her recusal. Immediately following Ms. Canary’s recusal, appropriate steps were taken to ensure the integrity of the recusal, including establishing a ‘firewall’ and moving all documents relating to the investigation to an off-site location. [Footnote] 16 On October 5, 2007, Mr. Franklin stated again “[Leura Canary’s] recusal was scrupulously honored by me.” [Footnote] 17 These statements have been repeated many times and have been relied on by defenders of the Department’s handling of this politically-sensitive matter.

[Footnote] 15 July 18, 2007, Statement of Acting United States Attorney Louis Franklin, available at http://blog.al.com/bn/20007/07/middle_district_of_alabamas_re.html

[Footnote] 16 July 18, 2007, Statement of Acting United States Attorney Louis Franklin, available at http://blog.al.com/bn/20007/07/middle_district_of_alabamas_re.html

[Footnote] 17 October 5, 2007, Statement of Acting United States Attorney Louis Franklin, available at http://www.wsfa.com/global/story.asp?s+7176844&ClientType=Printable

On May 16, 2002, Mrs. Canary clearly and unequivocally declared that she had recused herself from the prosecution of Gov. Siegelman stating in this press release that:

As to any matters pertaining to any current investigation of state officials or matters of state government which may or may not be underway, the Department of Justice has advised me that no actual conflicts of interest exist. However, out of an abundance of caution, I have requested that I be recused to avoid any question about my impartiality.

It is of the utmost importance to me, as a United States Attorney, that the people in the Middle District of Alabama and throughout the State have confidence in the manner in which matters are handled by me and by the office I serve and that no one has a basis under which to question the integrity of any investigation undertaken by my office. To that end, the Department has assigned responsibility for the supervision of any investigation regarding state officials or matters of state government to First Assistant United States Attorney Charles R. Niven.

Scott Horton, a contributor to Harper’s Magazine and author of the weblog No Comment for Harper’s website, has been following the prosecution of Don Siegleman and has written extensively on the subject. In his article September 14, 2007 article The Remarkable ‘Recusal’ of Leura Canary, Prof. Horton identified two material misstatements that raise the question of Mrs. Canary’s honesty regarding her recusal from the case:

I question the honesty of Leura Canary’s statement. First, it makes the claim–continuously repeated–that Mrs. Canary took this step on her own initiative. In fact she took it because of the request that attorney Johnson filed with the Justice Department, which launched an independent look at the matter.

Second, Mrs. Canary says that the Justice Department told her that she was okay from a conflicts perspective. I put the question to two prominent legal ethicists: would the facts I presented require Mrs. Canary’s recusal from the investigation of Governor Siegelman? Answer: “this is not a borderline or close case. Under the facts you outline, Mrs. Canary violated the canons of ethics by undertaking and handling the investigation of Governor Siegelman for the period up to her recusal.” Do you believe that a Department of Justice Office of Professional Responsibility officer would have advised Mrs. Canary that there was “no actual conflict.” Answer: “The standard that applies is whether there would be an ‘appearance of impartiality,’ not ‘actual conflict,’ so the Canary statement misstates the rule. Nonetheless, here the situation passes far beyond ‘appearance of impartiality’ and reaches an actual conflict. The advice she suggests could not have been competently rendered. It would be very interesting to know who at Justice gave such advice.” …

As far back as September 2007 when he published his article, Prof. Horton questioned whether Mrs. Canary had recused herself in fact and not just in word, noting that Mrs. Canary’s statement that she recused herself is only the beginning of the discussion:

And third, the press statement says she recused herself. But did she?

The question then became follow-through. Career senior Justice Department officials tell me that when a U.S. Attorney recuses him- or herself, there is a standard procedure followed: a conflict of interest certification is prepared and submitted in the matter; a certificate of divestiture is prepared and submitted; “502 determinations” are prepared; there is also other ordinary documentation such as a formal appointment of an acting U.S. attorney to handle the matter, transmittal documentation and the like. The normal process, as I am told, is that a neighboring U.S. Attorney is appointed to handle the matter, usually with support of career professionals who would otherwise report to the recused U.S. Attorney.

I can find no evidence that any of these standard procedures were followed. Instead, according to public statements, a member of Mrs. Canary’s staff was appointed to handle the matter. In fact the person she designated was her principal prosecutor; that is, someone whose career and advancement was dependent directly upon her evaluations, not those of an intermediate staffer. When I reviewed this with a career senior Justice Department official I was told: “That’s very odd, and it violates the basic recusal rules. If the recused U.S. Attorney has appointed one of her staffers, without the supervision of another U.S. Attorney, then she has not really recused herself at all. The staffer operates in her office, under her apparent supervision, subject to her performance evaluations, and receiving her paychecks. The idea that the U.S. Attorney is recused and that the staffer is running the show would be a difficult sale to anyone with eyes and possessed of a brain.” Precisely. The ploy only works when the local media report it and don’t ask any questions or use their analytical faculties.

In September of 2007, the evidence that Mrs. Canary had not recused herself in fact from the prosecution that was available to Prof. Horton was limited to Mrs. Canary’s involvement in several press opportunities:

When charges were announced against Siegelman at a press conference convened in Montgomery, Noel Hillman traveled down to Montgomery to deliver the message (stating, ironically as it turns out, “Public Integrity does not do politics”), and there with him stood Leura Canary. Similarly, as the case proceeded, Leura Canary did not keep any distance from it. She gave interviews to the Los Angeles Times and to the Montgomery Advertiser about the case. Not the conduct of a ‘recused’ U.S. Attorney. [As of November, 17, 2008, linking to the Montgomery Advertiser from the link in Prof. Horton’s article returns a page that states that ‘The article requested can not be found!’]

However, as Rep. Conyers and Rep. Sanchez explain in their letter to Attorney General Michael Mukasey, documents – obtained by both Prof. Horton and Adam Zagorin – have surfaced that establish that Mrs. Canary did not, as a matter of fact, recuse herself from the prosecution of Gov. Siegelman:

Ms. [Tamarah] Grimes[, an employee of the United States Attorney for the Middle District of Alabama,] has provided several emails[*] casting serious doubts on these assertions, however. The most significant of these emails is a September 19, 2005, email from Ms. Canary to Acting United States Attorney Franklin, Assistant United States Attorneys Feaga and Perrine, First Assistant United States Attorney Patricia Watson (whose last name was Snyder at this time), and criminal legal assistant Debbie Shaw. This email was sent at a critical time in the Siegelman/Scrushy case – Mr. Siegelman had been indicted, although that fact had not been revealed to his attorneys, and the Government was preparing a superceding indictment that would be publicly revealed the following month.

In this email, Ms. Canary forwards an article regarding the Siegelman case and writes: “Ya’ll need to read because he refers to a ‘survey’ which allegedly shows that 67% of Alabamians believe the investigation of him to be politically motivated. (Perhaps grounds not to let him discuss court activities in the media?) He also admits to making ‘bad hires’ in his last administration.” [Footnote] 18

This email raises obvious questions about the degree to which Ms. Canary honored her recusal from this case. A recused United States Attorney should not be providing factual information such as relevant news clipping containing a defendant’s statements to the team working on the case under recusal. And this email does not just show Ms. Canary forwarding and article – it reflects her analyzing the article and highlighting certain facts. And most troubling of all it contains a litigation strategy recommendation – that the prosecution should seek to bar Mr. Siegelman from speaking to the media. We note too that it was sent only to members of the Siegelman/Scrushy prosecution team – it was not an office wide email that inadvertently reached people working on the case.

[Footnote] 18 September 19, 2005, email from Leura Canary to JB Perrine, Steve Feaga, Louis Franklin, Debbie Shaw and Patricia Snyder.

[*Portions of the images of the e-mails released by Ms. Grimes are printed below.]

Regarding Mrs. Canary’s advice that the prosecution seek a gag order against Gov. Siegelman, Adam Zagorin reported on November 14, 2007 at Time.com that the prosecution team did just that:

Prosecutors in the case seem to have followed Canary’s advice. A few months later they petitioned the court to prevent Siegelman from arguing that politics had any bearing on the case against him. After trial, they persuaded the judge to use Siegelman’s public statements about political bias — like the one Canary had flagged in her e-mail — as grounds for increasing his prison sentence. The judge’s action is now one target of next month’s appeal.

Writing at the Daily Beast, Prof. Horton characterized Mrs. Canary’s conduct in this manner:

Canary, attaching a Siegelman campaign missive to one email, noted that Siegelman claimed that the prosecution is politically motivated and that 67 percent of Alabamans agree with him. Canary suggested that her subordinates obtain a gag order against Siegelman to bar him from making any references to the political nature of the charges brought against him. The communication suggested that Canary’s motivation is, just as Siegelman alleges, political in nature. More significantly, it demonstrates that Canary continued to drive the case notwithstanding her “recusal.”

In fact, the prosecutors sought a gag order against Siegelman and persuaded the judge, a former member of the Executive Committee of the Alabama G.O.P., to ratchet Siegelman’s sentence upwards because he claimed he was a victim of a political prosecution led by Republicans. (Recent polling suggests that Alabamans believe by overwhelming margins that Siegelman was a victim of a political prosecution, and newspaper editorial boards across the state called for his release.)

In another email, Canary’s first assistant referred to Canary making staffing decisions surrounding the prosecution of the Siegelman case long after her “recusal.” These allegations are backed up by the fact that Canary repeatedly appeared at news conferences concerning the Siegelman prosecution and granted at least three press interviews to discuss it—all after she said she had removed herself from the case.

In their letter to Attorney General Michael Mukasey, Rep. Conyers and Rep. Sanchez continue to document Mrs. Canary’s unethical conduct:

Ms. Grimes has provided other documents to the Committee that bear on this issue. In one email, Ms. Canary forwards another another article to essentially the same group of recipients. [Footnote] 19 This too appears improper and again raises the question why a recused United States Attorney would be providing such information to the active prosecution team. Another email notes that Ms. Canary was consulted about the decision to add Ms. Grimes to the Siegelman/Scrushy team – referred to as the “big case” – and states that “Leura and Louis both liked the concept[“] and further reports that “Leura asked me to pass this information [regarding Ms. Grimes’ role on the case] on …[.]” [Footnote] 20 We appreciate that a United States Attorney who is recused from a particular matter will continue to play a role in the overall administration of the office, but question whether participating in detailed discussions about the staffing of the matter from which she has been recused is appropriate and whether messages or information from the recused United States Attorneys should be passed on to new members of the team.

In her July 2007 report to OPR, Ms. Grimes elaborated on this subject, stating that “Leura Canary kept up with every detail of the case through Debbie Shaw and Patricia Watson.” [Footnote] 21 Once again, if this statement is accurate, it raises serious concerns. It is difficult to imagine the reason for a recused United States Attorney to remain so involved in the day to day progress of the matter under recusal.

[Footnote] 19 September 27, 2005, email from Leura Canary to Steve Feaga, Louis Franklin, JB Perrine, and Patricia Snyder.

[Footnote] 20 April 6, 2005, email from Patricia Snyder to Steve Doyle

[Footnote] 21 July 30, 2007 Letter to H. Marshall Jarrett from Tamarah Grimes.

On November 21, 2008, Adam Nossiter at the New York Times reported that:

Yet in her complaint, the Justice Department employee, Tamarah T. Grimes, cited several instances suggesting Ms. Canary maintained a close watch on the case. Ms. Grimes said a legal aide in the office reported on Mr. Siegelman’s trial to Ms. Canary or her top deputy “every day, sometimes several times per day by telephone.” Once, she observed Ms. Canary “frantically pacing in the executive suite” after a courtroom blowup, “pleading with someone” to get on the phone to “tell Louis he has to control his temper.”

Ms. Grimes also disclosed an e-mail message written by Ms. Canary commenting on legal strategy in the case and suggesting to aides that Mr. Siegelman not be allowed to “comment on court activities in the media.” Ms. Grimes, who is also in a dispute with the department related to her accusations that the Siegelman prosecution team had harassed her, cited the affidavit of a former legal aide in the Montgomery office, Elizabeth Jane Crooks, who wrote that “the morning that the trial started, the U.S. attorney herself carried food and beverage over to the courthouse to support the ‘Trial Team.’ ”

Mr. Siegelman’s lawyers have reacted with anger to these contentions, saying they demonstrate that Ms. Canary never really took herself out of the case. “She was supposed to be recused precisely because her involvement would reek of political conflict of interest, yet she remained involved,” they wrote in a filing to the 11th Circuit court this week.

Mrs. Canary has denied any wrongdoing both personally and through her subordinates. In reviewing Mrs. Canary’s conduct, neither her nor Mr. Franklin’s statements that Mrs. Canary recused herself need not – and indeed must not – be accepted at face value. To the contrary, her denials of improper motives or conduct must be evaluated based on the totality of the circumstances. As provided in the adopted Terminology of the Alabama Rules of Professional Conduct, for Mrs. Canary to believe that her conduct was proper, she must have “actually supposed the fact in question to be true” (which belief “may be inferred from circumstances”) and for that belief to be reasonable requires “that the circumstances are such that the belief is reasonable.”

For example, in her May 16, 2002 press release, Mrs. Canary admitted that “it would not be appropriate for me to discuss any investigations that may or may not be under review in my office.” However, as Prof. Horton notes in his article The Remarkable ‘Recusal’ of Leura Canary, Mrs. Canary made this statement to the Los Angeles Times:

Leura Canary said that suggesting she exerted political influence over the case was “a ridiculous assertion” because it was handled by a career prosecutor, Franklin, in conjunction with the public integrity section of the Justice Department in Washington.

As noted above, Prof. Horton reported on several interactions between Mrs. Canary and the press regarding the prosecution of Gov. Siegelman after her alleged recusal:

When charges were announced against Siegelman at a press conference convened in Montgomery, Noel Hillman traveled down to Montgomery to deliver the message (stating, ironically as it turns out, “Public Integrity does not do politics”), and there with him stood Leura Canary. Similarly, as the case proceeded, Leura Canary did not keep any distance from it. She gave interviews to the Los Angeles Times and to the Montgomery Advertiser about the case. Not the conduct of a ‘recused’ U.S. Attorney. [As of November, 17, 2008, linking to the Montgomery Advertiser from the link in Prof. Horton’s article returns a page that states that ‘The article requested can not be found!’]

Mrs. Canary’s denials were echoed by Louis V. Franklin, Sr., Acting U.S. Attorney in the Siegelman/Scrushy Prosecution:

When the investigation first began, Leura Canary was not the U.S. Attorney for the MDAL. Initially, the investigation was brought to the attention of the Interim U.S. Attorney, Charles Niven, a career prosecutor in the U.S. Attorney’s Office. Niven had almost 25 years of experience as an Assistant U.S. Attorney in the office prior to his appointment as Interim U.S. Attorney upon U.S. Attorney Redding Pitt’s (currently attorney of record for Defendant Siegelman in this case) departure.

Ms. Canary became U.S. Attorney in September 2001. In May 2002, very early in the investigation, and before any significant decisions in the case were made, U.S. Attorney Leura Canary completely recused herself from the Siegelman matter, in response to unfounded accusations that her husband’s Republican ties created a conflict of interest. Although Department of Justice officials reviewed the matter and opined that no conflict, actual or apparent, existed, Canary recused herself anyway to avoid even an appearance of impropriety. I, Louis V. Franklin, Sr., was appointed Acting U.S. Attorney in the case after Charles Niven retired in January 2003. I have made all decisions on behalf of this office in the case since my appointment as Acting U.S. Attorney. U.S. Attorney Canary has had no involvement in the case, directly or indirectly, and has made no decisions in regards to the investigation or prosecution since her recusal. Immediately following Canary’s recusal, appropriate steps were taken to ensure that she had no involvement in the case. Specifically, a firewall was established and all documents relating to the investigation were moved to an off-site location. The off-site became the nerve center for most, if not all, work done on this case, including but not limited to the receipt, review, and discussion of evidence gathered during the investigation.

* * *

Armed with cooperation agreements from Bailey, Young and Kirsch, the investigation continued. In June 2004, a special grand jury was convened to further assist in the investigation. An indictment was returned under seal against Mr. Siegelman and ex-HealthSouth CEO Richard Scrushy on May 17, 2005. The first superseding indictment was filed and made public on October 26, 2005, charging Siegelman, Scrushy, Siegelman’s former Chief of Staff Paul Hamrick, and Siegelman’s Transportation Director Gary Mack Roberts. …

However, as specifically noted by Rep. Conyers and Rep. Sanchez in their letter to Attorney General Michael Mukasey, it was during this exact time frame specified by Acting U.S. Attorney Franklin in which Mrs. Canary clearly was not recused in fact from the prosecution of Gov. Siegelman:

The most significant of these emails is a September 19, 2005, email from Ms. Canary to Acting United States Attorney Franklin, Assistant United States Attorneys Feaga and Perrine, First Assistant United States Attorney Patricia Watson (whose last name was Snyder at this time), and criminal legal assistant Debbie Shaw. This email was sent at a critical time in the Siegelman/Scrushy case – Mr. Siegelman had been indicted, although that fact had not been revealed to his attorneys, and the Government was preparing a superceding indictment that would be publicly revealed the following month.

In this email, Ms. Canary forwards an article regarding the Siegelman case and writes: “Ya’ll need to read because he refers to a ‘survey’ which allegedly shows that 67% of Alabamians believe the investigation of him to be politically motivated. (Perhaps grounds not to let him discuss court activities in the media?) He also admits to making ‘bad hires’ in his last administration.” [Footnote] 18

This email raises obvious questions about the degree to which Ms. Canary honored her recusal from this case. A recused United States Attorney should not be providing factual information such as relevant news clipping containing a defendant’s statements to the team working on the case under recusal. And this email does not just show Ms. Canary forwarding and article – it reflects her analyzing the article and highlighting certain facts. And most troubling of all it contains a litigation strategy recommendation – that the prosecution should seek to bar Mr. Siegelman from speaking to the media. We note too that it was sent only to members of the Siegelman/Scrushy prosecution team – it was not an office wide email that inadvertently reached people working on the case.

In light of the evidence presented by Ms. Grimes and the contradictions between her actions and her contradictory, self-serving statements, Mrs. Canary’s denials are simply not believable. In short, “a lawyer of reasonable prudence and competence would ascertain the matter in question” to be improper, and, therefore, Mrs. Canary should have known that her conduct was improper even if she actually (and, in that case, quite incompetently) did not know her conduct was improper.

If the reputations of the Department of Justice and the Alabama State Bar are ever to be salvaged, Mrs. Canary must be investigated by the Alabama State Bar Office of Legal Counsel and referred to the Alabama State Bar Disciplinary Committee to answer for her violations of the Alabama Rules of Professional Conduct. Although the Alabama State Bar Office of Legal Counsel has the authority to begin an investigation on its own volition, a state bar system will not normally begin a formal investigation until it receives a formal complaint. A formal grievance complaint can’t be filed online, but anyone – whether a resident of Alabama or not or otherwise involved in this matter – can easily file a grievance against Mrs. Canary with the Alabama State Bar in just three simple steps:

  1. Print, complete and sign the official Alabama Complaint Against a Lawyer;
  2. Print and attach this page to the Complaint Form as the factual basis for the claim; and
  3. Mail the complaint to the address noted on the Complaint Form.

Rules Violated by Leura Garrett Canary:


*Portions of the images of the e-mails released by Ms. Grimes. The complete images of the e-mails can be found here.

September 19, 2005 e-mail from Leura Garrett Canary:


September 25, 2005 e-mail from Leura Garrett Canary:


April 6, 2005 e-mail from Patricia Snyder to Stephen Doyle:


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h/ts: Legal Schnauzer, WriteChic Press, at-Largely and capt.

Thanks are also due to Scott Horton for all his contributions to reporting on the Siegelman prosecution.

Text of the Alabama Rules of Professional Conduct violated by Mrs. Canary


Thomas W. Hartmann

After summarizing multiples instances in which Thomas W. Hartmann‘s conduct raises the question as to his fitness to practice law, Scott Horton concludes with this comment:

For an attorney to be formally admonished and removed from legal proceedings twice for unprofessional conduct is an extraordinary matter. However, Hartmann is defiant, insisting that his actions are proper. One wonders if the disciplinary authorities of the Connecticut[, Illinois and/or Missouri] bar[s] are following these developments.

While this question is more than appropriate to ask, it can be made moot if and when a grievance is filed against Mr. Hartmann. To do so, simply:

  1. Print, complete and sign the official Complaint Form for Illinois and Missouri (or .pdf);
  2. Print and attach this page to the Complaint Form; and
  3. Mail the complaint to the address noted on the Complaint Form.

Personal Information:

  • Bar: Illinois
    • Full Licensed Name: Thomas W. Hartmann
    • Date of Admission as Lawyer by Illinois Supreme Court: April 29, 2002
    • Registered Business Address:
      DOD General Counsel

      595 Summer St., Suite 300
      Stamford, CT 06901-1407
    • Registered Business Phone: (703) 699-2761
    • Illinois Registration Status: Active and authorized to practice law – Last Registered Year: 2008
    • Malpractice Insurance (Current as of date of registration; consult attorney for further information): In annual registration, attorney reported that he/she does not have malpractice coverage. (Some attorneys, such as judges, government lawyers, and in-house corporate lawyers, may not carry coverage due to the nature of their practice setting.)
  • Bar: Missouri

Bar Information: Illinois

Bar Information: Missouri

While reviewing this matter, it is important to keep in mind that the privilege to practice law imposes duties and responsibilities on each attorney who accepts a license to practice law. These obligations are described in the Preamble to the Illinois Rules of Professional Conduct :

The practice of law is a public trust. Lawyers are the trustees of the system by which citizens resolve disputes among themselves, punish and deter crime, and determine their relative rights and responsibilities toward each other and their government. Lawyers therefore are responsible for the character, competence and integrity of the persons whom they assist in joining their profession; for assuring access to that system through the availability of competent legal counsel; for maintaining public confidence in the system of justice by acting competently and with loyalty to the best interests of their clients; by working to improve that system to meet the challenges of a rapidly changing society; and by defending the integrity of the judicial system against those who would corrupt, abuse or defraud it.

To achieve these ends the practice of law is regulated by the following rules. Violation of these rules is grounds for discipline.

* * *

The quality of the legal profession can be no better than that of its members. Lawyers must exercise good judgment and candor in supporting applicants for membership in the bar.

Lawyers also must assist in the policing of lawyer misconduct. The vigilance of the bar in preventing and, where required, reporting misconduct can be a formidable deterrent to such misconduct, and a key to maintaining public confidence in the integrity of the profession as a whole in the face of the egregious misconduct of a few.

It is also important to bear in mind that although Mr. Hartmann may deny improper motives or conduct, any such denial or protestation must be evaluated based on the totality of the circumstances. As noted in the Illinois Rules of Professional Conduct, for Mr. Hartmann to believe that his conduct was proper, he must have “actually supposed the fact in question to be true” (which belief “may be inferred from circumstances”) and for that belief to be reasonable requires “that the circumstances are such that the belief is reasonable.” Additionally, because “a lawyer of reasonable prudence and competence would ascertain the matter in question” to be improper, Mr. Hartmann reasonably should have known that his conduct was improper.

Accordingly, Mr. Hartmann’s conduct violated the following the following rules of professional conduct:

Illinois Rules of Professional Conduct:

Missouri Rules of Professional Conduct:

Allegation: Mr. Hartmann made extra-judicial statements regarding pending prosecutions in violation of the Illinois and Missouri bar associations.

As noted by Prof. Horton in his post, Mr. Hartmann “appeared on national television brandishing harsh labels and prejudging cases on which he was slated to exercise an appellate review function—raising questions under professional ethics rules which later fueled challenges against him. Specifically, on February 14, 2008, Mr. Hartmann appeared on PBS‘s NewsHour in which he made the following statements, which, even if factually accurate (which they are not), violate the Illinois and Missouri rules of professional conduct:

JIM LEHRER: Next, the 9/11 trials. Ray Suarez has our story.

RAY SUAREZ: The six Guantanamo detainees now set to face trial by military commission all face charges announced on Monday for their direct involvement in planning the September 11th terrorist attacks.

They include: Khalid Sheikh Mohammed, the alleged mastermind of the attacks; Waleed bin Attash, alleged to have selected and trained two of the hijackers; Ramzi Binalshibh; Ali Abdul al-Aziz Ali; and Mustafa Ahmad al-Hawsawi, each charged with coordinating and financing and training for the attacks; and Mohammed al-Qahtani, the so-called 20th hijacker, who was barred entry to the U.S. a month before 9/11.

If convicted, each could face the death penalty.

The legal process was outlined by an act of Congress in 2006. The trials themselves will take place in a specially designed set of courtrooms known as Camp Justice on the U.S. naval base at Guantanamo.

Here to walk us through that process is Brigadier General Thomas Hartmann, the legal adviser to the convening authority for the Office of Military Commissions at the Department of Defense.

General, welcome.

BRIG. GEN. THOMAS HARTMANN, Legal Adviser, U.S. Military Tribunal System: Good evening.

RAY SUAREZ: How will these trials differ from a conventional criminal trial in the United States? Will the defendants be able to examine the evidence against them and directly confront their accusers?

BRIG. GEN. THOMAS HARTMANN: Yes, absolutely. Every piece of evidence that goes before the jury, the finder of fact, will be subject to their review, cross-examination, challenge, objection, just like you would see in an American court or a military court martial. So they have those full rights in the courtroom.

RAY SUAREZ: One aspect that’s gotten a lot of attention and is likely to come up in the trial is the source of that information. There’s a theory in legal circles, “fruit of a poisoned tree.” If information is introduced in court that was obtained by torture, could that end up slowing or even preventing these trials from moving forward?

BRIG. GEN. THOMAS HARTMANN: The trials will be governed by the rules of evidence and the rules of procedures that Congress has put in place under the Military Commission Act that you mentioned. And we will leave it up to the trial counsel and the defense counsel and the judge to make the determinations of what’s admissible in the court.

We’re a country that is governed by the rule of law and not by the rule of men, and we will follow the rule of law in these proceedings. It’s not effective to be able to try these cases in the press or anywhere else. We’ll decide them in the courtroom on Guantanamo.

RAY SUAREZ: So at this point, it’s not clear exactly how evidence that may have been obtained by physical coercion will be treated when we’re actually at trial?

BRIG. GEN. THOMAS HARTMANN: All the evidentiary decisions will be made by the trial counsel and the defense counsel duking it out in the courtroom, and the judge will make that final decision.

RAY SUAREZ: Who’s going to be sitting in judgment on these defendants?

BRIG. GEN. THOMAS HARTMANN: Military judges. Each of the judge advocate generals, the uniformed judge advocate generals, have nominated people, and the chief judge will appoint a particular judge to a case, but there are 12 sitting judges who are available to take the trials. They’re all experienced military judges; they’re all uniform; they’ve got decades of experience.

RAY SUAREZ: As this process is approached, various defense counsel have expressed concerns, misgivings about whether they’re going to be able to examine all the evidence that’s being brought to bear against their clients or whether they’ll be roadblocks, impediments where people will say, “Sorry, you just don’t have the clearance to see this stuff.”

BRIG. GEN. THOMAS HARTMANN: Well, they will — if they need discovery, they have the rights to discovery, reasonable and material evidence, as it’s set forth in the manual for military commissions, very similar to the manual for military court martial.

And they will have the right to seek discovery. The judge will rule if there are any challenges on that discovery, and it will proceed very much like a normal trial.

RAY SUAREZ: You use the word “reasonable.” Who decides what’s reasonable?

BRIG. GEN. THOMAS HARTMANN: The reasonable is an objective standard. And ordinarily in discovery the two trial counsel, the trial counsel and the defense counsel, try to reach a conclusion. And if they cannot, the judge makes the decision of what’s reasonable.

RAY SUAREZ: Have members of the military legal profession raised any concerns about their ability to try this case? Has it been hard to fill all the slots you need to move forward because of misgivings in the uniformed ranks about this process?

BRIG. GEN. THOMAS HARTMANN: I don’t think so. The uniformed ranks are stretched thinly because of the global war on terror and trying to deal with all that.

But we’re getting the resources we need from the judge advocates general from the uniformed services, and we continue to get resources from them as the process expands and more trials are brought, more charges are sworn.

RAY SUAREZ: One of the prominent members of the team, Colonel Steven David, said of the process, when reporters were asking him how to proceed, “You’re asking me to tell you how we’re going to get to a place we’ve never been with a map I don’t have.”

He seemed to be a little unsure about how all this is going to work once it really gets going.

BRIG. GEN. THOMAS HARTMANN: Well, in the defense community, they have today, as we speak, nine uniformed counsel, and they’ll get another one within one day. They have four civilian counsel, and they have three more military counsel in the hopper on the way through the process.

One will come in April, and two more will come in May. And at this point, there are only 12 accused, the six that were accused the other day, and then you had six before that. So there are 12 people. That’s a good ratio of support.

The defense also has analysts, and they will get more analysts. They have interpreters, and they have computer resources. They have places to review classified information. So we’re resourcing them very well.

RAY SUAREZ: Do these defendants, because of the highly charged nature of this case, worldwide audience, the conflict about how exactly to proceed, can they go into court and say, “I want my own legal team, and I don’t want to be tried with these guys because of what we’re all being charged with”?

BRIG. GEN. THOMAS HARTMANN: The chief prosecutor has recommended that these cases, the ones I announced on Monday, be charged jointly and be tried jointly. That decision still needs to be made by Judge Crawford, the convening authority. And even if she should decide to send them to trial jointly, they can challenge that in the courtroom.

And the judge can say, “I’m going to sever these.” You’re either joint or severed, so the judge can decide if he wants to sever them.

And each of them has the right to a detailed military counsel effective on the swearing of the charges on Monday, so that right has kicked in. They haven’t all received one yet.

But they can also get civilian counsel of their own choosing at their own expense. And Hamdan is one of the cases that was tried last week in connection with motions and discovery, and Hamdan had sitting at his defense table at Guantanamo Bay five defense counsel, one military defense counsel, one Department of Defense civilian, two members of a distinguished law firm in the United States, and one professor from Emory University.

And Hamdan on his appeal to the Supreme Court had seven counsel, all of them civilians. So we think that they’re well-represented, the resources are there, and the resources will continue to be there.

RAY SUAREZ: Well, how important is that? Are you very conscious in this process, as we begin it, that the world is watching this, and to the degree that it deviates from the kind of trial someone would be able to demand on United States soil, that there may be questions around the world about how this works?

BRIG. GEN. THOMAS HARTMANN: Very conscious of it. If you study the rights, the rights are amazing that are made available to these accused, the right to remain silent, the right to have — the right to see all the evidence that goes to the finder of fact, the beyond-a-reasonable-doubt standard.

The burden of proof is on the government, presumption of innocence. The presumption of innocence and the burden of proof beyond a reasonable doubt did not even exist at Nuremberg. They get to call witnesses. They get to cross-examine witnesses. They get to call their own witnesses.

If they are found guilty, they get an automatic right of appeal to the Court of Military Commission Review. That doesn’t exist anywhere but in our system that they get an automatic right of appeal. So these rights are tremendous.

We think that they equate very closely to the rights we make available to our own soldiers, sailors, airmen and Marines in the uniformed services. And I think many, many people out there watching will think that they are a national treasure, our soldiers, sailors, airmen and Marines, and to provide the same thing is a reflection of the American standard of justice.

RAY SUAREZ: But you’ve also announced your intention to seek the death penalty in these cases. Does that add a burden for the prosecution that may be difficult to carry, given the rules under which this is moving forward?

If there are any circumstances where people can’t see the sources of evidence, where they can’t find out where information being introduced against them came out, wouldn’t that be mitigation if they appeal their death penalty?

BRIG. GEN. THOMAS HARTMANN: Well, let me take you way back. The prosecutors have recommended that it go forward as a capital case. Judge Crawford, the convening authority, still needs to make that decision as to whether that will be a capital charge.

And even then, even then a jury of at least 12 members, at least 12 members must unanimously agree on the findings and the sentence. And, as I mentioned, they will have access to the discovery and to the extent that they don’t think they’re getting the right discovery, they will bring that to the attention of the judge, and the judge will fix that within the rule of law.

RAY SUAREZ: And the 12 members are all active-duty military?

BRIG. GEN. THOMAS HARTMANN: The 12 members — it’s at least 12 members. It could be more. But if it’s more, it’s still unanimous. It has to be a unanimous decision.

They’re military personnel chosen based upon their age, experience, judicial temperament, and factors of that sort, in terms of sitting in the trial. It’s virtually identical to the process we use in a military court martial practice.

RAY SUAREZ: And very quickly before we go, how soon might we see the first opening arguments?

BRIG. GEN. THOMAS HARTMANN: Opening arguments, I can’t predict. We expect that you will see arraignments probably sometime in the spring, and that’s when the accused is read the charges, announces his rights to counsel, what he wants for counsel, and how he enters a plea.

After that, the case will proceed through discovery, motions, and that will take some time, and then you’ll see opening statements after that.

RAY SUAREZ: General Hartmann, thanks for joining us.


(Emphasis supplied.)

Prior to his appearance on PBS, Mr. Hartmann penned this op-ed that ran in the Los Angeles Times on December 19, 2007:

I have read with great disappointment the Op-Ed article by Morris D. Davis, former chief prosecutor for the Office of Military Commissions, particularly his comments with regard to Susan Crawford, the military commissions convening authority.

Since October, Davis has repeatedly complained about the very military commissions he oversaw for two years. He has criticized the commission process for moving too slowly, resulting in only one case being tried, by a guilty plea. After that plea was negotiated, with Davis’ written concurrence, he claimed publicly that he was not properly consulted.

Davis has recently protested that politics has been inserted into the process, which he in many ways controlled, alleging improper pressure from me, from the department’s general counsel, Jim Haynes, and now from Crawford. Specifically, Davis insinuates that she is politically motivated and that she lacks impartiality. He claims — though that he never breathed a word of this to me — that the pressure to move cases more rapidly was politically motivated.

But one should be careful when one challenges the reputation of others. Crawford has not directed or influenced the way any military commission case will be tried. Davis knows that I, without any political interference, directed him to evaluate more carefully the evidence, the cases, the charging process, the materiality of the cases, the speed of charging, the training program and the overall case preparation in the prosecution office. Interestingly, when I testified before Sen. Jeff Sessions (R-Ala.) that some cases are moved more quickly than others because they have the most material evidence, he commented: “Well, I think it’s almost prosecutorial incompetence not to think in those terms. It’s important that you do so.”

Davis further contends that he resigned within hours of learning that I would report to General Counsel Haynes, and as my subordinate, Davis would be under Haynes in the chain of authority. This was also just hours after he learned the results of an independent military panel — appointed by Haynes after consultation with the service Judge Advocates General — that concluded I had not improperly asserted my authority. That report was immediately made available to the public. It is worthy of note that Haynes had, months before, signed a performance evaluation on Davis, suggesting that Davis was already in the chain of command. Davis did not object then.

Davis also charges that the commissions are no longer “full, fair, and open trials.” This is particularly biting as he knows that the process offers unprecedented rights to alleged war criminals. Indeed, he wrote and spoke of that often. He also knows how much effort the prosecution and defense teams have dedicated to the fairness of the process — a process played out in United States vs. Hamdan.

Regarding his new allegations that the trials are not open, Davis knows that national security demands that certain evidence remain classified. He had an especially high security clearance for that very reason. But there will be no “secret” trials. Though we must safeguard classified information in order to protect ongoing operations and our soldiers, sailors, airmen and marines, not one piece of evidence will go to a commission jury without review and the opportunity to object by the accused and his counsel.

Military commissions are now moving forward fairly and transparently. As they continue, critics will see uniformed service members, including judges, prosecutors and defense counsel, conduct trials with the dignity, fairness, and respect for law that defines American military justice — a justice system that remains the envy of the world.

Both of his PBS interview and his LA Times op-ed were made in violation of the Illinois and Missouri rules of professional conduct.

Allegation: Contrary to his role as legal advisor to the Pentagon, a purportedly neutral position, Mr. Hartmann failed to retain the required independence from the prosecution, and has been barred from participating, in military war tribunals.

Prof. Horton also identifies additional conduct of Mr. Hartmann that violated the Illinois and Missouri rules of professional conduct, including “accounts of Hartmann’s bullying and intimidation of other lawyers participating in the process circulated[,]” “specific allegations that he was jockeying to have cases publicized and tried “before the elections,” that he refused to resign once “he was banned from involvement in the case” and that he “was inappropriately aggressive in pushing for prosecution of certain cases that he felt had media value.” These general allegations are fully supported in the public record, including but not limited to the following articles:

As reported by William Glaberson in the New York Times :

The former chief military prosecutor for the planned war-crimes trials of Guantánamo detainees said yesterday that he had been pressured by military officials to rely increasingly on classified evidence, which would require that long trial sessions be held behind closed doors rather than in open proceedings.

“Who ever said we had to have open trials?” the former chief prosecutor said a military official, Brig. Gen. Thomas W. Hartmann, told him in September.

The former prosecutor, Col. Morris D. Davis, described the dispute in an interview yesterday. Colonel Davis said it was part of an internal disagreement over whether war-crimes trials at Guantánamo Bay, Cuba, are to be largely public, displaying evidence against terrorism suspects, or largely closed, which could increase criticism of Guantánamo.

Colonel Davis, a career Air Force lawyer, said one of his priorities as chief prosecutor had been to get as much evidence as possible declassified so people around the world could assess the strength of cases against terrorism suspects. But he said two officials told him in September that he was wasting time declassifying evidence and that it was more important to move quickly by filing charges against detainees.

“No matter how perfect the trial is,” Colonel Davis said, “if it’s behind closed doors, it’s going to be viewed as a sham.”

Colonel Davis resigned Oct. 5 after a bitter turf dispute with General Hartmann, who was named legal adviser this summer to Susan J. Crawford, the senior official in the Office of Military Commissions at the Defense Department.

* * *

In the interview yesterday, Colonel Davis read from notes he said he made after a telephone conversation with General Hartmann on Sept. 10. He said the general expressed irritation at the slow pace of prosecutions and made the remarks about conducting trials with closed sessions.

* * *

In August, Colonel Davis filed a formal complaint at the Pentagon claiming that General Hartmann had overstepped his role by asserting control over the prosecution office. This month, Pentagon officials told Colonel Davis that they were backing General Hartmann, and Colonel Davis asked to be reassigned.

In the interview, Colonel Davis said General Hartmann noted twice in September that a legal rule permitted military commission proceedings to be closed when classified evidence was being presented and said, “We’ve got to use it.” He said that on Sept. 21, Ms. Crawford told him she agreed with General Hartmann.

Colonel Davis, who has been assigned to another legal position after two years as the chief military prosecutor for Guantánamo, said he felt it was important to keep trials as open as possible.

He said that while he supported the use of military commissions, “this whole process is under a cloud” because of critics who have asserted that the administration created a legal system for detainees that gives them fewer rights than the country’s civilian justice system. He said the criticism could be mitigated “by keeping it as open and transparent as possible.”

Colonel Davis said he had worked with prosecutors to select evidence that could secure convictions while trying to limit the need to close the Guantánamo trials, which are expected to draw international attention.

And as reported by Jess Bravin at the Wall Street Journal:

WASHINGTON — In March, a plea bargain guaranteed Australian David Hicks, an inmate at the U.S. military prison in Guantanamo Bay, his freedom by year’s end. The deal helped Australian Prime Minister John Howard, a U.S. ally, avoid a bruising domestic controversy.

Now, the former chief prosecutor at the Guantanamo military commission in Cuba for suspected terrorists says in an interview that the Hicks case was the beginning of political interference in the offshore justice system. Col. Morris Davis resigned earlier this month to protest new rules he says will ensure that political officials have similar control over future war-crimes prosecutions.

* * *

Gen. Hemingway’s successor, Brig. Gen. Thomas Hartmann, arrived in July and asserted direct control of the prosecution effort, prompting conflict with Col. Davis over the office’s leadership. Gen. Hartmann is neither a judge nor a prosecutor. He is appointed by the Pentagon general counsel to advise the administrator of the military commission — a position that has no exact analogy in civilian courts.

An internal review ultimately sided with Gen. Hartmann, rejecting Col. Davis’s view that federal law insulated the chief prosecutor from the legal adviser’s direct control. Earlier this month, Deputy Secretary England issued memorandums that essentially put the prosecutions under the control of the Pentagon’s general counsel.

Marc Falkoff, who was the principal lawyer in the habeas representation of seventeen Yemeni men detained by the U.S. military at Guantanamo Bay, confirms Col. Davis’ allegations of the improper politicization of these trials in this op-ed at the Jurist:

Last month, Colonel Morris Davis stepped down as chief prosecutor for the military commissions at Guantánamo, citing political interference with the independence of his office. The resignation was a remarkable development in Guantánamo’s embattled history, illuminating the degree to which politics rather than principle governs our notorious offshore prison.

* * *

We already know, therefore, that the military commissions are a bad idea for those of us who want to see speedy justice at Guantánamo. But with the resignation of Colonel Davis as chief prosecutor, we are now learning that the military commissions – whatever their inherent flaws and virtues – have themselves been corrupted by politics. If Davis’s allegations are to be credited, then the commissions system is being manipulated by political actors in an improper, unethical and potentially illegal manner – a politicization of the Guantánamo justice system that echoes the U.S. Attorneys scandal.

According to Davis, for more than a year Pentagon officials have sought to influence his decisions about “who we will charge, what we will charge, what evidence we will try to introduce, and how we will conduct a prosecution.” * * *

More recently, Davis filed a formal complaint alleging that Brigadier General Thomas Hartmann, the Legal Advisor to the authority overseeing the military commissions process, had pushed him to file cases that would attract more public attention and garner support for the tribunal system, even though such cases would require secretive, closed proceedings. (By Pentagon regulation, the Legal Advisor is supposed to be an impartial administrator of justice, not an arm of the prosecution.)

In September of this year, Davis threatened to resign if anyone tried to intimidate him. He has now done so, stating bluntly that, “as things stand right now, I think it’s a disgrace to call it a military commission – it’s a political commission.”

What makes this all the more alarming is that Colonel Davis is the last person you would expect to stand up as a whistleblower. To be sure, other officers have gone public about abuses in the Guantánamo system. * * * But none of these men had, like Colonel Davis, previously spoken out in support of all things Guantánamo.

For years, Davis has been the Administration’s de facto spokesperson in defense of the military commissions. * * *

And now we have the spectacle of Davis resigning and speaking out about the intimidation and political interference he encountered as Guantánamo’s chief prosecutor. * * *

* * *

For the majority of the prisoners at Guantánamo, the value of Davis’s resignation is that it may finally signal to the American public that politics rather than principle reigns at Guantánamo, and that decisions about the administration of justice at the camp are being made – largely outside of public view and without accountability – by political actors for nakedly political reasons. How else, for example, are we to explain the fact that every European who was dragged to Guantánamo has been returned to his home country, but that nearly ninety percent of the Yemenis who have been detained at the naval base remain there today – even though a number of them have actually been cleared for release by the military?

For more than three years, my colleagues and I have visited with our clients at Guantánamo dozens of times, frequently bringing them “good news” about court victories we have won. To a man, upon hearing our news, our clients have smiled politely and shrugged, pointing out to us that they still have not had their day in court and that they still are not treated in accord with the Geneva Conventions. “You have to understand,” they tell us, “this is all a big game.” More and more, I am starting to think they are right.

Marc Falkoff teaches criminal law and criminal procedure at Northern Illinois University College of Law. Prior to joining the NIU faculty, he was an associate at Covington & Burling, where he was the principal lawyer in the habeas representation of seventeen Yemeni men detained by the U.S. military at Guantanamo Bay. He is the editor of Poems From Guantanamo: The Detainees Speak (University of Iowa Press, 2007).

Col. Morris D. Davis, in his op-ed printed in the Los Angeles Times explains how the Convening Authority, of which Mr. Hartmann was the Legal Advisor, improperly imposed political consideration in the prosecution of these cases:

I was the chief prosecutor for the military commissions at Guantanamo Bay, Cuba, until Oct. 4, the day I concluded that full, fair and open trials were not possible under the current system. I resigned on that day because I felt that the system had become deeply politicized and that I could no longer do my job effectively or responsibly.

In my view — and I think most lawyers would agree — it is absolutely critical to the legitimacy of the military commissions that they be conducted in an atmosphere of honesty and impartiality. Yet the political appointee known as the “convening authority” — a title with no counterpart in civilian courts — was not living up to that obligation.

In a nutshell, the convening authority is supposed to be objective — not predisposed for the prosecution or defense — and gets to make important decisions at various stages in the process. The convening authority decides which charges filed by the prosecution go to trial and which are dismissed, chooses who serves on the jury, decides whether to approve requests for experts and reassesses findings of guilt and sentences, among other things.

Earlier this year, Susan Crawford was appointed by the secretary of Defense to replace Maj. Gen. John Altenburg as the convening authority. Altenburg’s staff had kept its distance from the prosecution to preserve its impartiality. Crawford, on the other hand, had her staff assessing evidence before the filing of charges, directing the prosecution’s pretrial preparation of cases (which began while I was on medical leave), drafting charges against those who were accused and assigning prosecutors to cases, among other things.

How can you direct someone to do something — use specific evidence to bring specific charges against a specific person at a specific time, for instance — and later make an impartial assessment of whether they behaved properly? Intermingling convening authority and prosecutor roles perpetuates the perception of a rigged process stacked against the accused.

The second reason I resigned is that I believe even the most perfect trial in history will be viewed with skepticism if it is conducted behind closed doors. Telling the world, “Trust me, you would have been impressed if only you could have seen what we did in the courtroom” will not bolster our standing as defenders of justice. Getting evidence through the classification review process to allow its use in open hearings is time-consuming, but it is time well spent.

Crawford, however, thought it unnecessary to wait because the rules permit closed proceedings. There is no doubt that some portions of some trials have to be closed to protect classified information, but that should be the last option after exhausting all reasonable alternatives. Transparency is critical.

* * *

The Military Commissions Act provides a foundation for fair trials, but some changes are clearly necessary. I was confident in full, fair and open trials when Gen. Altenburg was the convening authority and Brig. Gen. Tom Hemingway [as opposed to Mr. Hartmann] was his legal advisor. Collectively, they spent nearly 65 years in active duty, and they were committed to ensuring the integrity of military law. They acted on principle rather than politics.

The first step, if these truly are military commissions and not merely a political smoke screen, is to take control out of the hands of political appointees like Haynes and Crawford [whose Legal Adviser was Mr. Hartmann] and give it back to the military.

* * *

Morris D. Davis is the former chief prosecutor for the Office of Military Commissions. The opinions expressed are his own and do not represent the views of the Department of Defense or the Department of the Air Force.

As reported by William Glaberson, in the New York Times:

GUANTÁNAMO BAY , Cuba — The former chief prosecutor here took the witness stand on Monday on behalf of a detainee and testified that top Pentagon officials had pressured him in deciding which cases to prosecute and what evidence to use.

The prosecutor, Col. Morris D. Davis of the Air Force, testified that Pentagon officials had interfered with his work for political reasons and told him that charges against well-known detainees “could have real strategic political value” and that there could be no acquittals.

His testimony completed one of the more unusual transformations in the contentious history of Guantánamo. Colonel Davis, who is on active duty as a senior Air Force official and was one of the Pentagon’s most vocal advocates of the Guantánamo military commissions, has become one of the most visible critics of the system.

Testifying about his assertions for the first time, Colonel Davis said a senior Pentagon official who oversaw the military commissions, Brig. Gen. Thomas W. Hartmann of the Air Force Reserve, reversed a decision he had made and insisted that prosecutors proceed with evidence derived through waterboarding of detainees and other aggressive interrogation methods that critics call torture.

Called to the stand by a Navy defense lawyer and testifying before a military judge, Colonel Davis said General Hartmann directed him last year to push war crimes cases here quickly. He said the general was trying to give the system legitimacy before a new president took office. He testified that General Hartmann referred to the long difficulties the Pentagon had had in operating the military commissions and said, “If we don’t get some cases going before the election, this thing’s going to implode.”

Spokesmen for the Pentagon and General Hartmann declined to comment on Monday, saying that the questioning was continuing before the military judge. In the past, they have said that they disagreed with some of Colonel Davis’s assertions.

The extraordinary testimony featured Colonel Davis, in uniform and perspiring slightly in an air-conditioned courtroom, being cross-examined by his successor, Col. Lawrence J. Morris of the Army. The two uniformed officers faced each other with natural military politeness, giving way occasionally to a brisk question or stiff response.

The awkward moment of one military officer’s taking on another occurred because lawyers for a detainee facing war crimes charges called Colonel Davis to the stand after he had given news interviews criticizing General Hartmann and the running of the military commissions.

The defense lawyers for the detainee, Salim Ahmed Hamdan, once a driver for Osama bin Laden , said Colonel Davis’s contentions amounted to unlawful influence over the prosecution.

* * *

Mr. Hartmann’s actions as a Pentagon Legal Adviser began to have an affect on the prosecution of the military commission trials. Specifically, Mr. Hartmann was deemed ineligible to participate in the first military commission trial, as reported by Bernard Hibbitts at the Jurist:

[JURIST] A US military judge has ruled that US Air Force Reserve Brig. Gen. Thomas Hartmann [Air Force Link profile], a top Pentagon legal adviser on the Guantanamo military commission trials, is ineligible to participate in the first military commission trial of a detainee because he is too closely associated with the prosecution , the New York Times reported Saturday. The Times said it had a copy of the decision by Navy Capt. Keith Allred, although it had not been publicly released. The paper quoted Allred as concluding that “National attention focused on this dispute has seriously called into question the legal adviser’s ability to continue to perform his duties in a neutral and objective manner”. Hartmann is legal adviser to Susan J. Crawford, the Convening Authority [backgrounder] for the military commissions. * * * (Emphasis supplied.)

* * *

As reported by William Glaberson, in the New York Times :

In a new blow to the Bush administration’s troubled military commission system, a military judge has disqualified a Pentagon general who has been centrally involved in overseeing Guantánamo war crimes tribunals from any role in the first case headed for trial.

The judge said the general was too closely aligned with the prosecution, raising questions about whether he could carry out his role with the required neutrality and objectivity.

* * *

The judge, Capt. Keith J. Allred of the Navy, directed that Brig. Gen. Thomas W. Hartmann of the Air Force Reserve, a senior Pentagon official of the Office of Military Commissions, which runs the war crimes system, have no further role in the first prosecution , scheduled for trial this month.

General Hartmann, whose title is legal adviser, has been at the center of a bitter dispute involving the former chief Guantánamo military prosecutor, Col. Morris D. Davis of the Air Force.

Colonel Davis has said the general interfered in the work of the military prosecution office, pushed for closed-door proceedings and pressed to rely on evidence obtained through techniques that critics call torture.

“National attention focused on this dispute has seriously called into question the legal adviser’s ability to continue to perform his duties in a neutral and objective manner,” the judge wrote on Friday, in a copy of the decision not released publicly but obtained by The New York Times. Decisions by Guantánamo judges are not typically released publicly until days after being handed down.

* * *

General Hartmann, who has been a controversial figure since his appointment last summer, is the legal adviser to the Pentagon official with broad powers over the war crimes system, Susan J. Crawford. She has the military title of Convening Authority of the Guantánamo war crimes cases.

* * *

General Hartmann has been the military official most publicly identified with prosecutions in recent months. It was he, for example, who announced the Sept. 11 charges and has publicly pressed prosecutors to move faster.

Ruling on a defense lawyers’ request that said General Hartmann had exerted unlawful influence over the prosecution, Judge Allred said that public concern about the fairness of the cases was “deeply disturbing” and that he could not find that the general “retains the required independence from the prosecution.”

* * *

General Hartmann has denied Colonel Davis’s assertions and said the commission system would “follow the rule of law.” He has also said he has pressed prosecutors and others involved in the tribunals to move the cases more quickly.

* * *

Judge Allred’s ruling followed a hearing in Guantánamo on April 28 at which Colonel Davis said General Hartmann pressured him in deciding what cases to prosecute and what evidence to use. The judge called the hearing after lawyers for a detainee, Salim Hamdan, said his charges were unlawfully influenced.

(Emphasis supplied.)

Mr. Hartmann has now not only been barred from fulfilling his function as Legal Advisor in the Hamdan prosecution. As Prof. Horton notes:

Now a second military judge, Col. Steve Henley, has ordered Hartmann’s removal from the proceedings, [the prosecution of Afghan detainee Mohammed Jawad] sustaining the accusations raised against him. In an order handed down on Friday, Hartmann was banned from participation in the case, and the defense counsel were advised that they could make submissions in their quest for access to exculpatory evidence directly to Crawford, bypassing Hartmann. (Emphasis supplied.)

These general allegations are fully supported in the public record, including this report by Jane Sutton for Reuters:

* * *

In the case of alleged Sept. 11 mastermind Khalid Sheikh Mohammed and four other prisoners who could face execution if convicted, the military defense lawyers said the charges were tainted by meddling and “overreaching” on the part of Air Force Brig. Gen. Thomas Hartmann.

Hartmann was assigned to provide impartial legal advice to the Pentagon appointee overseeing the Guantanamo trials.

But the former chief prosecutor of the tribunals testified last month that Hartmann essentially took over the prosecution team, pushing it to use evidence obtained through coercion and demanding “sexy” cases that would pique the interest of the American public.

Military defense lawyers asked the tribunals’ chief judge, Marine Col. Ralph Kohlmann, to dismiss the charges on grounds that Hartmann was so heavily involved in drafting them that he “failed to retain the required independence.”

“When the government seeks the death penalty, it must not reduce legal procedures to mere formalities. The integrity of the system must be upheld, regardless of the nature of the crimes charged or identity of the accused,” they said in the documents. “The accused are entitled to due process and a fair trial”

* * *

The judge in the Hamdan case had already barred Hartmann from further involvement in those proceedings.

* * *

Carol Rosenberg of the Miami Herald also reports on this ruling:

GUANTANAMO BAY NAVY BASE, Cuba — One general testified against another at the war court Wednesday, describing a Pentagon official fast-tracking trials here as “abusive, bullying, unprofessional.”

Moreover, Army Brig. Gen. Gregory Zanetti, deputy prison camps commander, in testimony described the approach his counterpart, Air Force Brig. Gen. Thomas Hartmann, employed earlier this year this way:

“Spray and pray. Charge everybody. Let’s go. Speed, speed, speed.”

The colorful testimony — evoking battlefield language — came in pre-trial hearings in the case of Afghan detainee Mohammed Jawad, accused of wounding two U.S. troops by throwing a grenade in a bazaar in Kabul.

Hartmann is the legal advisor overseeing the first U.S. war crimes tribunals since World War II. Jawad’s attorney, Air Force Reserves Maj. David Frakt, wants the Afghan’s charges dismissed on grounds that Hartmann exerted ”unlawful influence” on the trials from his perch at the Pentagon.

Frakt alleges in his motion that Hartmann usurped the role of a prosecutor — rather than act dispassionately — and pushed to get Jawad charged because the case involved battlefield bloodshed.

In June, Hartmann defended his ”intense and direct” management style in testimony, saying he had pressured for speed to kick-start sluggish commissions, not for political reasons.

What was unusual about Wednesday’s testimony was that, while subordinates have described Hartmann’s style as abusive ”nano-management,” this was the first time a general officer of equal rank gave the similar testimony.

In telephone calls and teleconferences from the Pentagon, Zanetti said, Hartmann’s demeanor ”as an attorney from a thousand miles away” was “abusive, bullying and unprofessional. . . pretty much across the board.”

The Pentagon’s chief war crimes prosecutor at the time, now retired Air Force Col. Morris Davis, resigned to protest Hartmann’s behavior.

Davis testified Wednesday at a hearing in the case of another war crimes defendant captured in Afghanistan as a teen, Canadian Omar Khadr. The Jawad prosecution ”went from the freezer to the frying pan, thanks to General Hartmann,” Davis told Khadr’s lawyer.

* * *

Zanetti described struggling with Hartmann over who would run U.S. forces working on trial logistics.

To try to work with Hartmann, who like Zanetti has a one-star on his uniform, the Army brigadier said he sought to discuss the concept of ”command unity” with the Air Force brigadier.

”As a principle, it’s really been around since Alexander The Great. Most military people understand this one,” Zanetti said, with a laugh. “General Hartmann really wanted to run things.”

* * *

(Emphasis supplied.)

Finally, Mike Melia of the Associated Press reports these details:

* * *

The former chief prosecutor, Air Force Col. Morris Davis, testified that Hartmann pushed for Jawad to be charged because the American public would be gripped by the details of the case — a grenade attack on two U.S. soldiers and their interpreter in Afghanistan.

“The guy who threw the grenade was always at the top of the list,” Davis said.

* * *

The judge also ruled that Frakt can submit exculpatory evidence to the tribunals’ top official, Susan Crawford, for her to review whether the charges against Jawad are warranted — without input from Hartmann.

“For the first time, she will be presented with a balanced portrait of the facts and circumstances in this case,” Frakt said.

Hartmann supervises the chief prosecutor at Guantanamo and has extensive powers over the tribunal system. He testified Wednesday that he believed he was doing his job properly and said he has not offered to resign.

* * *

Based on these allegations, Mr. Hartmann’s conduct, as described above, violates the Illinois and Missouri rules of professional conduct.

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Text of the Virginia and Missouri Rules of Professional Conduct violated by Mr. Hartmann.

Had enough yet?

The Legal Schnauzer shares a letter he recently received. In his post, Message From a Political Prisoner, he describes the receipt of the letter as “a profound experience recently, something I never dreamed would happen to me as a U.S. citizen.” He explains:

My letter was from Wes Teel, a former state judge in Mississippi who is in federal prison in Atlanta after being convicted in the Paul Minor case. Wes and I have never met; we’ve never even talked on the phone. But we got acquainted via e-mail when I began to write about the Minor case last September.

Wes and his codefendants, fellow state judge John Whitfield and well-know plaintiff’s attorney Paul Minor, had been convicted, and Wes was looking at reporting to federal prison in December 2007.

In our e-mail exchanges, I found Wes to be a man of keen intellect, common sense, and good humor–even in the face of going to prison for a crime he did not commit. I came to consider Wes a friend, and I shared his pain when he had a heart attack not long after reporting to federal prison. I shared his concerns about his wife, Myrna, who has multiple sclerosis and needed care while her husband was eight hours away in federal prison. I know he worried about his grandchildren and what they would grow up to think of a country that could imprison their grandfather simply for doing his job as a state judge.

On the surface, Wes and I might seem like unlikely friends. My blog started only because of the wrongdoing I had witnessed from lawyers and judges in Alabama state courts. Corrupt lawyers and judges have brought my wife and me to the edge of ruin–and here was Wes, a lawyer and former judge who was charged with being corrupt himself.

But here is one of many lessons I’ve learned from my Legal Schnauzer journey: Just because you’ve had a bad experience with someone in a certain profession, don’t assume that everyone in that profession is a bad actor.

After studying the Minor case at length, I realized that Wes Teel and John Whitfield were honest judges. They ruled for Paul Minor’s clients because that’s what the facts and the law required them to do. And I realized that, based on the evidence I had seen, Paul Minor was an honest lawyer. Certainly in the cases the government had used to build its prosecution, Minor acted properly, and his client prevailed because they should have prevailed.

The Minor case taught me that not even all Republican judges are corrupt. Another codefendant was Oliver Diaz, a justice on the Mississippi Supreme Court who was tried and acquitted twice. And Diaz is a Republican.

I realized that the bad guys in the Minor case were not lawyers, judges, or even Republicans. No, it is that certain breed of Republican that has been infected by a virus that seems to have started with George W. Bush and Karl Rove and wound up sickening our entire justice system.

Wes Teel is a victim of that justice system. His letter made me sad, angry, and ultimately, determined:

Please go to the full post to read more excerpts of Mr. Teel’s letter, but contemplate this excerpt which, as noted by the Legal Schnauzer, answers the question:

What does it mean to be a political prisoner in the United States?

Due to the conviction, unless it is overturned, I am essentially no longer a citizen. I can’t vote, possess a firearm, hold a bond, run for public office, or ever practice law again. Despite all of this, I have a vested stake in the success of our Republic. I want my grandchildren to grow up and be proud of our constitution and our government. I pray that change will one day come, and my precious grandchildren can come to enjoy the freedoms instituted by our Founding Fathers and paid for by the blood and sacrifice of many patriots.

Had enough yet to file a grievance?

If not, there’s more. Juxtapose the politicized prosecutions of Wes Teel, John Whitfeld, Paul Minor, Oscar Diaz, Don Siegelman, Georgia Thompson and Dr. Cyril Wecht with the politicized refusal by Michael Mukasey to prosecute Michael Elston, Kyle D. Sampson and Monica Marie Goodling. Scott Horton of Harper’s Magazine has named this selective failure to prosecute The Mukasey Doctrine and describes it like this:

Today [Attorney General Michael Mukasey] addressed the annual convention of the American Bar Association, and expanded upon what may be known to future generations as the “Mukasey Doctrine.” This doctrine holds that political appointees in the Justice Department who breach the public trust by using their positions for partisan political purposes face no punishment for their crimes. In the Mukasey view, this is all simple political gamesmanship—“boys will be boys”—and sufficient accountability is provided by exposing their games to the public limelight.

After reviewing in the briefest terms the recent internal Justice Department probe into the politicization of the hiring process in the honors program, with respect to immigration judges and in other areas, here’s what Mukasey has to say:

The conduct described in those reports is disturbing. The mission of the Justice Department is the evenhanded application of the Constitution and the laws enacted under it. That mission has to start with the evenhanded application of the laws within our own Department. Some people at the Department deviated from that strict standard, and the institution failed to stop them.

I want to stress that last point because there is no denying it: the system failed. The active wrong-doing detailed in the two joint reports was not systemic in that only a few people were directly implicated in it. But the failure was systemic in that the system–the institution–failed to check the behavior of those who did wrong. There was a failure of supervision by senior officials in the Department. And there was a failure on the part of some employees to cry foul when they were aware, or should have been aware, of problems.

Note how Mukasey plays the entire affair down and uses the traditional language of the criminal defendant–for him it was a “system failure.” His language is passive: things evidently just happened. But in fact a closer read of the Inspector General’s report shows that the figures involved and the schemes adopted had a clear provenance in the White House, and specifically in the warren of Karl Rove. The actors under investigation, Kyle Sampson and Monica Goodling, had come with Alberto Gonzales from the White House. They benefited from an extraordinary delegation of authority from Gonzales that allowed them, two thirty-somethings with little experience, to exercise the authority of the attorney general in the hiring and firing process. This didn’t “just happen.” It was the result of a careful plan for partisan entrenchment at Justice—consciously pursued in defiance of the law. A serious investigation would have focused on the senior figures responsible for this program. So what is the penalty for such a systematic violation of the law? Well, according to Mukasey, there isn’t one. Those involved have already suffered enough. Yes, they suffer because their misdeeds are now known.

Their misconduct has now been laid bare by the Justice Department for all to see.

* * *

Mukasey insists that the process of partisan entrenchment has been checked following his arrival.

* * *

The message that Mukasey is sending seems to be this: he will refuse to appoint a special prosecutor to look into the matter, whatever the inspector general suggests. In the Mukasey view, it will be enough punishment for the truth to come out.

Had enough yet? Ready to file a grievance?

From Dana Jill Simpson by Glynn Wilson of The Locust Fork Journal spoke to Dana Jill Simpson, who explains why we need to continue this fight:

After hearing about the speech and reading the stories about it, North Alabama attorney Jill Simpson said in a statement that Mukasey is a “disgrace to our country” and those who really pursue justice.

She called on President George W. Bush to restore the rule of law and fire Mukasey.

“He is showing a complete lack of respect for the rule of law by not charging individuals who were part of the United States Justice Department that broke the law,” she said. “He is creating a class of individuals that are above the law in this country and that is wrong. They should be tried for the crimes they committed, but Mr. Mukasey told the ABA they are going to get off Scott free.”

“These Doj employees broke the law it doesn’t matter where they work, ignorance to the law is no excuse, plus the evidence suggests these folks knew what they were doing and broke the law anyway. They should be tried and, if convicted, punished for their crimes,” she said.

Or at least disbarred. It’s time to file grievances against these attorneys.

Updated August 13, 2008 to fix title.

Updated August 15, 2008: More on Wes Teel here.

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It’s not paranoia if they ARE out to get you, No. 7

In Episode No. 5 of the Paranoia, I highlighted the story of Jesselyn Radack as told by Jane Mayer, author of The Dark Side, in her July 14, 2008 interview, Six Questions for Jane Mayer, Author of The Dark Side, with Scott Horton at No Comment. Ms. Radack wrote about her experience in The Canary in the Coal Mine.

In this interview with Bill Moyers about her book, Ms. Mayer continues to provide material for this series:

BILL MOYERS: Who were some of the other conservative heroes, as you call them, in your book?

JANE MAYER: A lot of them are lawyers. And they were people inside the Justice Department who, one of whom, and I can’t name this one in particular, said when he looked around at some of the White House meetings – he was in where they were authorizing the President, literally, to torture people – if he thought that was necessary, he said, “I can’t, I could not believe these lunatics had taken over the country.” And I am not talking about someone who is a liberal Democrat. I’m talking about a very conservative member of this Administration. And there was a-

BILL MOYERS: Your source?

JANE MAYER: My source.

BILL MOYERS: And, yet, when these conservatives – as you write in your book – when these conservatives spoke up, Cheney and company retaliated against their own men.

JANE MAYER: People told me, “You can’t imagine what it was like inside the White House during this period.” There was such an atmosphere of intimidation. And when the lawyers, some of these lawyers tried to stand up to this later, they felt so endangered in some ways that, at one point, two of the top lawyers from the Justice Department developed this system of talking in codes to each other because they thought they might be being wiretapped. And they even felt-

BILL MOYERS: By their own government.

JANE MAYER: By their own government. They felt like they might be kind of weirdly in physical danger. They were actually scared to stand up to Vice President Cheney.

Full transcript here.

These attorneys were right to be frightened of Vice President Cheney. Just ask Harry Whittington.

H/t ThinkProgress via WriteChicPress

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It’s not paranoia if they ARE out to get you, No. 6

At No Comment, Scott Horton continues with his stellar reporting on the politicization of, and abuse of power in, the Department of Justice with this July 23, 2008 post of his Six Questions for Former U.S. Attorney David Iglesias, Author of In Justice. Mr. Iglesias. one of the United States Attorneys fired by DoJ on December 7 – Pearl Harbor Day – of 2007, explains, in a nutshell, what happened:

One cannot fully comprehend the recent Justice Department meltdown without understanding the belief in New Mexico, Missouri, and Washington State Republican circles, that the 2000 election and subsequent contests were rife with fraud. It set the stage for what followed during the scandal surrounding the forced resignations in 2006 of United States Attorneys John McKay of Seattle, Todd Graves of Kansas City, and me. We were all criticized by Republican operatives for not filing voter or election fraud cases in our respective districts. Each of us examined the evidence and did not find any provable cases, so no indictments were filed. I remember hearing Republican activists allege that the Democrats stole the election in New Mexico during the 2000 presidential election. I heard that illegal immigrants were voting in large numbers. If true this would be criminal, but prosecutors may not base their cases on rumor and innuendo but on admissible evidence they can prove beyond a reasonable doubt in a court of law. * * *

Voter fraud became the bogeyman of New Mexico politics. And what person was best equipped to prevent this alleged problem from happening again? The United States Attorney. Hence in the summer of 2002 the Executive Office of United States Attorney in Washington emailed all 93 U.S. Attorneys asking us to work with state and local election officials to prevent election fraud. * * * That changed dramatically in 2004, when the local media covered numerous instances of apparent voter fraud. * * *

In response, I set up one of only two election fraud task forces in the country. * * *

I also set up a hotline for citizens to call into the local FBI office. I believed that we would find provable cases of fraud that I could prosecute, and I was determined to find them. * * * After almost two years of investigation, we were unable to come up with a single prosecutable case. I conferred with main Justice and with the local FBI office. It was ultimately my call, and I followed the professional staff in finding that there wasn’t enough evidence to support a prosecution. Main Justice and the FBI did not disagree with my assessment.

But local Republican leaders disagreed. They could not believe that the investigation failed to produce a prosecution. During the 2004-06 time period, Rumaldo Armijo and I received numerous phone calls and emails from former state G.O.P. counsel Patrick Rogers. He exhorted us to file cases. We could only tell him what we would tell any member of the public–that we would file provable cases and even then, we would not file a case just before an election if we felt it could affect the outcome of the election. This was policy of the Justice Department, per career attorney Craig Donsanto, who wrote the election fraud manual that all U.S. attorneys used. Significantly, Rogers never told Armijo or me that he was also an official of a group called the American Center for Voting Rights—a G.O.P. organization alleged to be engaged in voter suppression efforts. I did not find this important fact until after I left the Justice Department. I knew Rogers to be involved in the litigation over the voter I.D. law and knew him to be a fiercely partisan Republican. In 2006, I heard from a friend of mine who was active in the state party that the party was upset with me. At one point he implored me, “can’t you file something?” So I heard the rumbling of the party in the 2005-06 timeframe.

I was aware of the simmering discontent of the local Republicans. Just before the 2006 midterm election that discontent boiled over when I received a highly improper phone call from Congresswoman Heather Wilson in mid-October and another call from Senator Pete Domenici in late October. * * * Both Wilson and Domenici were talking about the same investigation. Wilson had used her opponent’s weak record in pursuing corruption cases as part of her attack strategy. I knew that if I told them I was close to indicting the case that would be used by Wilson in connection with her election campaign. I also knew they had no legitimate need to know when I would be filing the indictments. I was put on the list to be fired on November 7, 2006—Election Day. The timeline alone is damning and it was clear to me that I was placed on the list because I would not rush an indictment of a high-profile Democrat in a way that would benefit Wilson in her campaign. * * *

As Mr. Horton notes in his introduction,

His meteoric career is not simply the stuff of movies–after all, some of David Iglesias’s experiences as a Navy JAG at Guantánamo Bay furnished the material for Aaron Sorkin’s play “A Few Good Men,” later converted into a Hollywood blockbuster. (Italics in original.)

Even a stellar career in the Navy that is ‘the stuff of movies’ followed by six (6) years of public service as a United States Attorney was not sufficient to insulate Mr. Iglesias from the Bush administration. And throughout this whole sordid affair, Mr. Iglesias has maintained his professionalism, demonstrated his strength of character and, as a result, provides a model of conduct to which all attorneys should strive to emulate.

Read the rest of the interview here .

Buy David Iglesias’ book In Justice: Inside the Scandal That Rocked the Bush Administration.

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It’s not paranoia if they ARE out to get you, No. 5

In his July 14, 2008 No Comment post, Six Questions for Jane Mayer, Author of The Dark Side, Scott Horton introduces his interview with Jane Mayer, author of The Dark Side:

In a series of gripping articles, Jane Mayer has chronicled the Bush Administration’s grim and furtive dealings with torture and has exposed both the individuals within the administration who “made it happen” (a group that starts with Vice President Cheney and his chief of staff, David Addington), the team of psychologists who put together the palette of techniques, and the Fox television program “24,” which was developed to help sell it to the American public. In a new book, The Dark Side, Mayer puts together the major conclusions from her articles and fills in a number of important gaps. Most significantly, we learn the details on the torture techniques and the drama behind the fierce and lingering struggle within the administration over torture, and we learn that many within the administration recognized the potential criminal accountability they faced over these torture tactics and moved frantically to protect themselves from possible future prosecution. I put six questions to Jane Mayer on the subject of her book, The Dark Side. (italics in original)

In the interview, Ms. Mayer describes yet another instance in which the Bush administration has retaliated against someone who dared raise a voice in dissent:

[Horton:] You spend more time showing how the torture process compromised lawyers than how it compromised health care professionals. One of the more revealing cases involves Jessica (sic) Radack, a young career attorney in the Justice Department’s Honors Program, who dispensed ethics advice concerning plans for the interrogation of John Walker Lindh. It seems that her advice was contrary to the ethical views of senior Bush Administration lawyers, and you note that when a federal judge demanded to see the internal Department of Justice records relating to the matter, all of Radack’s emails, including the advice actually dispensed, had been deleted and the hard copies removed, and none of this was furnished to the court. Did the Justice Department ever undertake an internal probe into the obstruction?

[Mayer:] Radack was in some ways an early guinea pig showing how high the costs were for anyone—including administration lawyers—who dissented from the Bush Administration’s determination to rewrite the rules for the treatment of terrorists. Her job in the department was to give ethical advice. She was asked whether an FBI officer in Afghanistan could interrogate John Walker Lindh and use his statements against him in any future trial. By the time she was asked this, however, as she knew, Lindh’s father had already hired a lawyer to represent him. So she concluded that it would not be proper for the FBI to question him outside the presence of his counsel.

To her amazement, the FBI agent went ahead and did so anyway, and then the prosecutors in the Justice Department proceeded to use Lindh’s statements against him in their criminal prosecution. She told me, “It was like ethics were out the window. After 9/11, it was, like, ‘anything goes’ in the name of terrorism. It felt like they’d made up their minds to get him, regardless of the process.” Radack believed that the role of the ethics office was to “rein in the cowboys” whose zeal to stop criminals sometimes led them to overstep legal boundaries. “But after 9/11 we were bending ethics to fit our needs,” she said. “Something wrong was going on. It wasn’t just fishy—it stank.”

What happened next was truly scary. She tried to ensure that a judge overseeing the case, who asked for all information regarding the Department’s handling of Lindh, was given the full record, including her own contrary advice. But instead, she said she found that her superiors at Justice sent the judge only selective portions of the record, excluding her contrary opinion. Her case files, she said, were tampered with, and documents missing. Among the senior Justice Department officials who were sent her files, she said was Alice Fisher, a deputy to Michael Chertoff who followed him as head of the Department’s Criminal Division.

Radack complained about what she thought were serious omissions of the record being withheld from the judge. Within weeks of disagreeing with the top Justice Department officials, Radack went from having been singled out for praise, to being hounded out of the department. Radack got a job in private practice, but after her story appeared in Newsweek, with copies of some of her emails, the Justice Department opened a leak investigation. The U.S. Attorney then opened a criminal investigation. Radack has since become an advocate for whistle-blowers’ rights. But the episode served as a warning to anyone in the government who stood in the way of the so-called, “New Paradigm.” It is unclear to me what sort of investigation, if any, there has been of this case, including of the potential obstruction. (emphasis supplied)

Read the rest of the interview here.

Update: Prof. David Luban, who blogs at Balkinzation, notes by e-mail that Jesselyn Radack wrote about this experience in The Canary in the Coal Mine, which is available for purchase here.

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Professor John Yoo and The Justice Case

Paul Kiel reported yesterday at TPMMuckraker that

the House Judiciary Committee authorized a subpoena for David Addington, Vice President Cheney’s Chief of Staff, to testify about the administration’s torture policy

And now the AP reports that John Yoo, probably the most infamous of the infamous characters that walked the halls of the Justice Department during the Bush administration, has agreed to testify as well without compulsion. That’s a departure from his original position, when he said that he could not testify about his role in authorizing the use of torture because he had not received the green light from the DoJ.

The AP adds: “Former Attorney General John Ashcroft, former Under Secretary of Defense Douglas Feith, and former Assistant Attorney General Dan Levin have also agreed to give testimony at a future hearing. Former CIA Director George Tenet is still in negotiations with the committee.”

Melissa, both at Left in Alabama as well as at her own Writechic Press, adds this:

Since our own Rep. Artur Davis is on the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, God willing and the creek don’t rise, he’ll be there when torture lawyer John Yoo is questioned.

That’s right! An anonymous source has told The Raw Story that John Yoo, a former Justice Department lawyer who wrote the Torture Memos will testify before the House Judiciary Committee. The memos which gave carte blanche to human rights violations and laughed in the face of the Geneva Conventions have now been repudiated at DoJ though damned if the U.S. Attorney General will hold the Republican Freak Show accountable which is just another form of corruption (to throw Mukasey’s words in his face). Here’s a link to the committee members in case you want to suggest questions.

Davis’ presence will be a refreshing switch from the obsequious, Bush-booty kissing that Sen. Jeff Sessions does. Tear Yoo up, Artur, for all the citizens of Alabama who know torture is wrong and are mad about Yoo.

In the comments to my post on Professor John Yoo, Melissa asks “What questions can we send to Rep. Artur Davis?” Although I have complete faith that Rep. Davis will be well-prepared to properly examine Prof. Yoo, I would suggest that any examination include discussion of The Justice Case. As Professor Marty Lederman, lecturer Keith Jon Heller, Professor Scott Horton and others have discussed the Justice Case in far more detail and expertise than I have and can, I would note that much of this discussion has revolved around Professor’s Yoo’s potential criminal liability. From my standpoint, unsurprisingly, I would address (and have addressed here) Professor Yoo’s ethical obligations.

In introducing a guest post at Balkinization by Kevin Jon Heller, Senior Lecturer, University of Auckland Faculty of Law, Professor Marty Lederman writes:

There has been a great deal of discussion in the blogosphere and the legal academy about the question of whether the OLC torture memoranda were not merely wrong, horrifying and indefensible, but actually criminal. My own view, roughly speaking, is the following:

1. This is in some sense an academic question, in that criminal prosecution of the lawyers is virtually unthinkable absent evidence that one or more of them actually believed that the conduct they were blessing was, in fact, unlawful.

2. Such evidence of the lawyers’ belief in the illegality of the conduct they approved is unlikely ever to emerge because, in some important sense, John Yoo, David Addington, et al., believed in the “correctness” of the conclusions contained in the torture memos.

* * *

When, if ever, such “aspirational” constitutional interpretation by executive actors is appropriate — and whether it must be done openly, and with full candor — are very important and difficult questions. For now, my point is merely to describe what I think was going on here, in order better to understand why actual criminal prosecution is almost unthinkable.

3. * * * And, surely, the most prominent and substantial historical precedent here is the Justice Case in the Nuremberg tribunals, in which the U.S. itself led the prosecution of several Nazi Ministry of Justice officials — government lawyers — for their involvement in the execution of the infamous “Nacht und Nebel,” or “Night and Fog,” decrees. The Justice Case is often invoked as an historical analogy for the criminal culpability of Bush Administration lawyers. Like many others, therefore, I have been wondering whether that is in fact a fair analogy. What was it, exactly, that the U.S. prosecutors claimed the German lawyers did to deserve criminal punishment? Was it, for instance (as some have suggested), that the lawyers advised German officials that the “Nacht und Nebel” decrees were lawful under German domestic law, while failing to also tell their government clients that the decrees would nevertheless violate the laws of war and constitute crimes against humanity? If so, then perhaps the Justice Case might have a lot to say about our current situation, because John Yoo, et al., in effect advised the President that he could authorize torture and like conduct under domestic law, and further informed him that he could, at least as a matter of domestic law, simply ignore the laws of war.

All of which is a long-winded way of introducing the important work of a guest blogger, Kevin Jon Heller of the University of Auckland (and Opinio Juris), who is actually undertaking a comprehensive and very important new study of what, exactly, the prosecution’s theories of culpability were at Nuremberg, especially in the Justice Case. In a forthcoming post, Kevin argues that the Justice Case might have less to teach us about the possibility of criminal culpability of Bush Administration lawyers than has previously been suggested. I don’t know for certain whether Kevin’s account is subject to serious debate or question, since I haven’t yet been through the primary materials myself. But I do know that Kevin has looked more closely at this question than any other recent scholar, and that his very important work will be the starting place for any further discussion about the Nuremberg tribunals and the torture memos.

With that introduction, Mr. Heller provides a detailed analysis of The Justice Case:

Scholars who argue that John Yoo’s authorship of the infamous torture memos makes him complicit in various war crimes -– torture, illegal detention, etc. -– almost invariably cite the WWII-era case United States v. Alstoetter, commonly referred to as the Justice Case, for the proposition that a government lawyer can be held criminally responsible for giving erroneous legal advice to his political superiors. Here, for example, is what Scott Horton, an excellent scholar and one of our finest bloggers, has to say :

Can a lawyer at the Department of Justice be criminally liable for giving opinions that lead to the torture and abuse of prisoners in war time? The answer is: Yes. The precedent is United States v. Altstoetter. The sentence handed down was ten years, less time served awaiting trial. It’s a case for John Yoo to study in the period leading up to his inevitable prosecution.

I do not know enough about Yoo’s actions to venture a general opinion about their possible criminality. I do know something, however, about the Justice Case -– I am currently writing a book for Oxford University Press on the jurisprudence of that trial and the eleven other trials held in the American zone of occupation between 1946 and 1949, which are collectively known as the Nuremberg Military Tribunals (NMT). So I thought readers might be interested in a detailed look at what the Justice Case says -– or doesn’t say -– about the culpability of government lawyers who advise their clients that unlawful conduct is, in fact, lawful. The bottom line, in my view, is that as reprehensible as Yoo’s opinions were –- and they were indeed reprehensible -– the case provides far less support for prosecuting him than most scholars assume.

Before delving into the details of the case, it is important to note that reading NMT judgments can be an exercise in frustration, because they are far less legally precise than the judgments issued by modern international tribunals. In particular, the Tribunals rarely specify the mode of participation they use to convict a defendant -– ordering, aiding and abetting, joint criminal enterprise, etc. -– and often even fail to identify which of the defendant’s acts discussed in the judgment they consider criminal. The latter flaw is particularly troublesome when trying to apply the legal principles articulated in the Justice Case to Yoo’s situation, because –- as explained below -– none of the defendants in the case were acting simply as legal advisors to the Ministry of Justice. As a result, we can only speculate whether the Tribunal would have convicted any of the relevant defendants if they had held a position of authority similar to Yoo’s.

The Justice Case itself, which was held in Nuremberg between March and December 1947, involved 16 defendants who were associated in various capacities with the criminal-justice system in Nazi Germany. Some were judges and prosecutors in the Nazis’ infamous Special Courts and People’s Courts; others were officials in the Reich Ministry of Justice. The crux of the prosecution’s case, according to Telford Taylor, the NMT’s Chief Prosecutor, was that the defendants were guilty of “judicial murder and other atrocities, which they committed by destroying law and justice in Germany and then utilizing the emptied forms of legal process for persecution, enslavement, and extermination on a vast scale.” Particularly relevant to Yoo’s situation is Paragraph 13 of the Indictment, which alleged that the Ministry defendants were criminally responsible for their involvement in the execution of Hitler infamous “Nacht und Nebel” decree (for background on the decree, see Scott Horton’s post here ):

The Ministry of Justice participated with the OKW and the Gestapo in the execution of Hitler’s decree of “Night and Fog” whereby civilians of occupied territories who had been accused of crimes of resistance against occupying forces were spirited away for secret trial by certain Special Courts of the Justice Ministry within the Reich, in the course of which the victims’ whereabouts, trial, and subsequent disposition were kept completely secret, thus serving the dual purpose of terrorizing the victims’ relatives and barring recourse to any evidence, witnesses, or counsel for the defense. The accused was not informed of the disposition of his case, and in almost every instance those who were acquitted or who had served their sentences were handed over by the Justice Ministry to the Gestapo for “protective custody” for the duration of the war. In the course of the above-described proceedings, thousands of persons were murdered, tortured, ill-treated, and illegally imprisoned.

The Tribunal had little difficulty concluding that the Night and Fog decree had “no legal basis either under the international law of warfare or under the international common law as recognized by all civilized nations” (1131). The primary issue, then, was which of the defendants could be held criminally responsible for the war crimes and crimes against humanity committed pursuant to the decree. According to the Tribunal, such individual responsibility required the prosecution to prove “that a defendant had knowledge of an offense charged in the indictment . . . and that he was connected with the commission of that offense” (1093).

Three of the defendants in the Justice Case held positions in the Ministry of Justice that involved, among other things, giving legal advice to the Reich Minister: Wolfgang Mettgenberg, who was Representative of the Chief of the Criminal Legislation and Administration Division; Guenther Joel, who was Legal Adviser for criminal prosecutions; and Wilhelm von Ammon, who was Ministerial Counsellor of the Criminal Legislation and Administration Division. All three were convicted of war crimes and crimes against humanity and sentenced to 10 years imprisonment.

There is, however, a fundamental problem with citing these convictions as precedent for prosecuting John Yoo or other Bush Administration attorneys who “merely” advised that certain conduct was lawful: namely, that Mettgenberg, Joel, and van Ammon were not only legal advisors to the Reich Minister. On the contrary, all three men possessed considerable political authority, as well -– and repeatedly used that authority to actually enforce the Night and Fog decrees.

At this point, Mr. Heller discusses the details of Mettgenberg, Joel, and Von Ammon. These details can be found at the Balkinzation post here.

As these examples indicate, Mettgenberg, Joel, and von Ammon did not simply advise their political superiors that they could legally authorize the commission of actions that qualified as war crimes and crimes against humanity under international law. The defendants personally authorized the commission of those crimes. In other words, Mettgenberg, Joel, and von Ammon were among the political superiors who made the discretionary decisions that were necessary to implement the Night and Fog decree. It is thus difficult to argue that their convictions stand for the proposition that, to quote Scott Horton again, “lawyers who dispense bad advice about law of armed conflict, and whose advice predictably leads to the death or mistreatment of prisoners, are war criminals.” On the contrary, the Tribunal never -– literally never -– singled out a specific legal opinion offered by any of the Ministry defendants as being even partly responsible for their convictions.

Indeed, the only specific discussion of legal advice in the Justice Case seems to imply that “merely” giving such advice, no matter how erroneous or damaging, does not give rise to criminal responsibility.

* * *

To be sure, the Tribunal does not specifically say that a legal opinion could never give rise to criminal responsibility. Nevertheless, the quoted passage appears to draw a very clear distinction between offering an erroneous legal opinion, which is not criminal, and choosing to implement an illegal government policy, which is.

Does all of this mean that the Justice Case completely exonerates government lawyers who advise their political superiors that war crimes or crimes against humanity are lawful? That is a difficult question. It is certainly possible that the Tribunal would have been willing to convict one of the defendants in the Justice Case for giving such advice to the Reich Minister, particularly if that advice had been a necessary precondition for the creation and enforcement of policies that qualified as war crimes and/or crimes against humanity. Nothing in the judgment itself, however, directly supports that conclusion. Moreover, at a bare minimum, I think the Tribunal would have required the prosecution to prove that the defendant gave the legal advice knowing that the actions he approved actually violated international law. That requirement is implied, I believe, in the Tribunal’s repeated insistence regarding the Night and Fog decree that “[a]ll of the defendants who entered into the plan or scheme, or who took part in enforcing or carrying it out, knew that its enforcement violated the international law of war” (1038).

The Justice Case , in short, provides far less support for prosecuting government lawyers like Yoo than scholars have assumed, at least insofar as their role in promoting torture and illegal detentions was actually limited to providing legal advice. At most -– and I believe that the argument is unacceptably speculative -– the Tribunal’s judgment suggests that a government lawyer is liable for war crimes and crimes against humanity committed pursuant to his legal advice if he knew that certain actions violated international law, but nevertheless failed to inform his political superiors of that fact. Whether Yoo would be a criminal under that standard, I leave for others who know far more about his actions to decide.


In the comments section to this post, Professor Scott Horton adds this comment:

We should always stress in going into this that the point of this exercise is not to compare John Yoo and his colleagues with the Nazis, but rather to distill the operating international law principles governing lawyers who dispense advice to governments in a war setting. (It’s worth a passing note that the Justice Case distinguishes itself from several other Nuremberg cases in that many of the defendants were career justice employees who were late-comers to the party, i.e., became party members after the Machtergreifung, when party membership was obligatory for those holding higher government posts). We should also note that this trial was one of the U.S. cases, not one of the international cases, for reasons which Telford Taylor and others have described — namely that the British and French were cold to the idea of trying the lawyers, fearing this would raise uncomfortable issues for themselves in their colonial rearguard mode.

Aside from the unwarranted flattery, this is a very good post– with good criticism — that does a solid job of summarizing some important details of the Altstoetter case. It’s regretable that much of the material from the case is difficult to access and research, and that the case record itself is rather rambling. But Kevin has done a good job of assembling and summarizing key parts of it.

I agree with Kevin that the evidence relating to the Nacht- und Nebelerlass defendants (NNE), especially von Ammon, is key for this point. Of course in the case of Altstoetter proper, the conviction did in fact turn specifically on three letters. But Kevin is correct that the defendants were all involved in the Justice Ministry’s actual administration of the program. We need to be much more careful in distinguishing what the Justice Ministry’s role was in this program. And I don’t agree with him as to the role of the legal opinions. The NNE was a counterinsurgency program designed to give military and occupation security authorities the power to apprehend civilians believed to be engaged in behind-the-lines attacks on Axis troops the authority to “disappear” persons without the need to go through the legal formalities that international law at the time would have required of an occupying power dealing with civilians. The internal records from the High Command (OKW) show that attacks on soldiers by civilians behind the lines of the East Front (especially in occupied Soviet territory) were the immediate inspiration. The original memoranda talk about a new kind of enemy which was fully disguised within the civilian population and was ideologically motivated and driven. These conclusions are correct — as CPSU documents reveal the party’s organization of such a terror campaign against German soldiers. As the proposal emerged from OKW, military and security authority was to be plenary and to rest on executive war-making notions. Von Ammon objected that this approach was a violation of the principle of legality, and he and his colleagues insisted that a process of adjudication be introduced; he also noted the need to arrange for wills, for the custody of children of the “disappeared” and the like. This was the role of the legal administration with respect to NNE. As Detlev Vagts has pointed out, the bulk of von Ammon’s proposals were ameliorative in nature.

The NNE program, and the court’s treatment of it in Altstoetter, has frequently been cited as the first international law authority on the concept of “disappearings,” which is a more modern crime against humanity. But an essential element of “disappearings” is that the person is treated outside the established legal regime (either that provided by the criminal justice system or the laws of armed conflict). The thrust of von Ammon’s position was to recognize this and to insist that a substitute judicial process be provided. This contrasts rather sharply with views articulated by the Bush Administration with respect to the “extraordinary renditions” program, for instance.

But his clearest offense was providing the legal rationale for evasion of the requirements of international law, for instance by providing for the projection of German domestic law into occupied territory. (Even on this point, note that von Ammon was very concerned about the operation of the special judicial process in occupied territory; he wanted the detainees to be transferred to Reich territory.)

The tribunal’s view was that von Ammon and his colleagues should have properly advised on the limitations of international law. They did not do so. If we had to put von Ammon’s mistakes on legal interpretation side-by-side with Yoo’s, the comparison would be very much in von Ammon’s favor, I think. That’s largely a result of the fact that many of the violations which the Tribunal noted really became crystalized after World War II, and at the time of the Justice Case were fairer game for argument than today.

Still, I am not trying to curry any sympathy for von Ammon — just the contrary, I think he got off lightly with his seven years served — but to make the point that the administration of the Justice Ministry’s plans was not the largest failing.

On the other hand, it did constitute an overt act in a sense in which the mere rendering of an opinion may not, also a significant point.

The bigger issues here are the JCE issues, which go to the notion introduced in the charge of “foreseeable” damage, among other things.

Philippe Sands’s key finding — if there is just one — is that the bottom up narrative that the Administration puts forward surrounding the introduction of torture techniques is a sham. He follows the story to its roots, and he finds that it is, to the contrary, a “top down” story, with a number of lawyers engaging in an elaborate scheme to cover it up with the paper trail that starts with the Diane Beaver memoranda. Key to this unraveling is the story of the senior lawyers’ trip to GTMO at the launch of the process, a trip about which Haynes repeatedly lied. Now it’s possible to explain this from a PR angle focused on domestic politics, which undoubtedly was a major focus of the White House throughout, but a prosecutor could just as well make the case that this shows recognition and belief that the scheme was essentially criminal (or presented substantial likelihood of criminal culpability) and thus needed to be concealed. In fact the key participants had been warned repeatedly at that point that regardless of their curious views about the laws of war, a large majority in the legal community would take a different perspective and could well view their conduct as criminal. This advice was clearly propelling their conduct.

The other striking parallel with the facts surrounding the NNE, which came out only with the examination of the records of the international law department at OKW at the close of the process, is that the German military lawyers had taken almost exactly the same stance that the American JAGs took on the Bush Administration’s detainee initiatives. They argued stringently for firm application of Geneva and Hague standards and said that this was driven by enlightened self-interest, i.e., to protect German soldiers. These views were overruled on the grounds that this was a “new kind of warfare” in which the principal foe, and the foe in the cross-hairs of the NNE, was terrorist in nature.

Several of the senior JAGs have now described to me their direct dealings with Yoo in which they stressed criminal liability as the major concern. Yoo’s response was consistently that he could “fix the problem” by getting the Criminal Division to issue get-out-of-jail cards for all concerned. And this puts Yoo a step closer to the implementation of a plan and a step away from the issuance of a detached opinion.

However, what we need now is to get to the bottom of all these carefully obscured dealings. It’s clear that will never happen before the Bush Administration leaves office, but after it’s gone, getting a clear picture of the lawyers’ dealings should be a priority.

Whether or not Professor Yoo committed a crime and, if he did, whether he will ever be prosecuted either here in the United States or in some other country, it is clear to me that Professor Yoo violated his ethical obligations and should at least lose the right to practice law. In my post stating why Professor Yoo should be investigated for violation of his obligations under the Pennsylvania and D.C. Rules of professional conduct , I quote with approval this post from Professor David Luban:

Of course it’s clear to [Professor] Marty [Lederman] that an OLC lawyer who goes to a party and tries to impress the admiring guests by blabbing about the hush-hush FISA opinion he is working on at the office has violated an ethical obligation – the obligation of confidentiality. And it’s clear that if the lawyer writes an opinion without doing the legal research, his negligence violates the ethical obligation of competence, because, in the words of the D.C. Rules of Professional Conduct , “Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” I can’t believe that Marty thinks the basic rules of lawyer’s ethics are irrelevant just because the lawyer works for the Office of Legal Counsel. You might want to quibble about labeling all these rules “ethical obligations,” because Rules of Conduct don’t always have to do with ethics in the moralist’s sense. Sometimes they are just a regulatory code. But in the examples I gave, the ethical dimension is undoubtedly there: the rule against betraying confidences and taking the pains reasonably necessary for doing your job are regulatory rules with an ethical basis.

Now it happens that one of these rules is labeled “Advisor.” It reads: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.”

“Independent” professional judgment means “independent of the client,” as the first comment to the rule makes clear: “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.” And “candid” advice means telling the client what the law, in the lawyer’s best judgment, actually means. This rule, too, has an ethical basis. In the first place, it tells lawyers not to chicken out from hard conversations; it’s a requirement of a certain measure of guts. In the second place, it tells the lawyer that as an advisor, he or she is more than an instrument of the client’s will. This is true for lawyers in private practice, but I see no reason at all to think that a lawyer-advisor carries different obligations when the client is White House.

This obligation of the advisor is very different from the standard conception of the lawyer’s role as courtroom advocate. In the courtroom, the lawyer’s job is to press the client’s case, counting on the opposing lawyer to highlight its weaknesses, and on the judge to check the lawyer’s one-sided presentation of the law. In the advice-giving setting, there is no opposing voice and no judge. That’s why, for more than four decades, the codes of responsibility for lawyers have distinguished sharply between the advocate’s role and the advisor’s. The advocate, in the words of the 1969 Code of Professional Responsibility, “should resolve in favor of his client doubts as to the bounds of the law.” But not the advisor: the advisor is supposed to give the law to the client straight.

But what if the client doesn’t want the law straight? There’s an old legal adage attributed to Elihu Root: “The client never wants to be told he can’t do what he wants to do; he wants to be told how to do it, and it is the lawyer’s business to tell him how.” Root was a corporate lawyer, and he was cynically expressing – a century ago – the scofflaw attitude of business people who resent lawyers who say “no.” But lawyers who say yes to whatever the client wants (“Dr. Yes” was reportedly John Ashcroft’s nickname for John Yoo) violate basic ethical norms of what legal advisors are supposed to do. As I’ve written elsewhere , lawyers who write opinions saying yes to whatever their clients want are no better than indulgence sellers.

Marty thinks that OLC lawyers are in a fundamentally different relationship with their client than private lawyers of corporate clients. I think that’s partly right – but only partly. The part that’s right is that OLC opinions can bind the executive branch – if not by law, then by custom. That puts OLC opinions on a nearly-equal footing with decisions of the D.C. Circuit Court of Appeals, where most cases involving the executive branch get litigated. The big difference is that the OLC renders its opinions in secret, and without hearing adversarial arguments to satisfy the basic maxim of procedural justice – audi alteram partem , “hear the other side.”

That makes the duties of independence and candor even more crucial. Lawyers whose legal advice – including secret advice – writes the law for the most dangerous branch of government have an awesome responsibility. It’s a responsibility not only to the client and the law, but to a country that is, without knowing it, being governed by twenty unknown lawyers in the Justice Department. (Quite frankly, the OLC is a scandal to democratic government, but that’s a subject for a different day.) Marty is quite right that the OLC’s mission should be to help the President fulfill the duty of faithful execution of the laws. But he’s wrong if he thinks that mission substitutes for the basics of legal ethics. That mission is over and above the duties of legal ethics.

And he’s wrong if he thinks that indulgence-selling is fundamentally different when the lawyers are writing indulgences to the President rather than private clients. Indulgence-selling is fundamentally worse when lawyers are absolving the President rather than Enron – but that’s because the President’s public trust runs deeper, not because the nature of the sin is different.

* * *

The fact is, though, that the ethical conduct of the million lawyers is far more important to the legal system than the journeywork of the nine justices. As I have written in Legal Ethics and Human Dignity , the lawyer-client consultation is the primary point of intersection between “The Law” and the people it governs, the point at which the law in books becomes the law in action. Most law is outside the courts, not in it; and most legal “decisions” take place in conversations between lawyers and their clients – conversations that never leave the office. This is a familiar law-and-society theme – but familiar as it is, we often forget it.

Marty errs, if I’m right, in thinking that the constitutional tremendousness of what the OLC does puts it on a plane above ordinary legal practice. But it’s a mistake, in my opinion, to get swept up in the higher ecstasies of Constitutional Law and the Thrones, Powers, and Dominations who occupy Constitutional Law Heaven – the Justices, the clerks, the theorists (sorry, Jack!), and the high priests in the OLC and the Solicitor General’s office. The law, as the Book of Deuteronomy says, “is not in the heavens, that you should say, ‘Who among us can go up to the heavens and get it for us and impart it to us, that we may observe it?’” The law is very near. It’s what we find in our lawyer’s office on the fourth floor of the Kresge Building, three doors down from the orthodontist. (If you see the Home Depot on your left, you’ve gone too far.) It’s law’s ordinariness, and the extraordinary role that lawyers play in vending it to us, that is precisely why legal ethics is important: if the lawyers are just Holmesian Bad Men and Bad Women following Elihu Root’s cynical advice, the law might as well not be there.

And that is why ethical obligations matter in the Office of Legal Counsel. It’s perhaps odd that the OPR is investigating for violations of the maxim of competence. But it makes a certain amount of sense: a legal opinion that is deeply eccentric in its interpretation of the law is not much different from an opinion written without adequate research. I’ve suggested that the more genuine violation is of the rule requiring candid and independent advice. But it would be almost impossible to prove a violation of that rule: to show lack of candor would require showing that the lawyer knew how eccentric his opinion was, and that seems impossible.

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