Detention

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  • John Yoo attacks Kagan for agreeing with Supreme Court majority that presidential power is not unlimited

    Blog ››› ››› ADAM SHAH

    In a New York Times op-ed, John Yoo -- author of the infamous torture memos -- attacked Elena Kagan for agreeing with the Supreme Court majority rather than Yoo himself on the limits of presidential power. Yoo, a law professor and Philadelphia Inquirer columnist, previously urged a filibuster of anyone Obama nominated.

    By attacking Kagan for not having the same extreme views as he does on executive power, Yoo does at least provide a rejoinder to those who forward the myth that Kagan will act as a rubber stamp on war on terror policies.

    In his Times op-ed Yoo attacks Kagan for stating views of presidential power that are "in line with the views of a majority of the Supreme Court justices and many liberal scholars who feel the executive branch's powers are quite limited." Yoo goes on to attack Kagan for not adopting his own and Justice Scalia's views that congressional attempts to limit the president's control over the executive branch are unconstitutional:

    In her law review article, Ms. Kagan also lauded Supreme Court holdings that Congress can prohibit presidents from firing subordinate officers, which effectively prevents the president from giving orders. This would place the executive agencies under the political thumb of the legislative branch. "I acknowledge that Congress generally may grant discretion to agency officials alone," Ms. Kagan wrote, and "the president must respect the limits of this delegation."

    Under this approach, Congress could free the Justice Department, the Defense Department and any other agency created by Congress from presidential control. To be fair, Ms. Kagan thinks this would be a bad idea (she praised President Clinton's centralization of authority in the White House because it fostered "accountability" and "effectiveness"). But she argued that the Constitution gives the president no power to prevent Congress from doing so.

    This is simply wrong. Article II of the Constitution vests in the president alone "the executive power" of the United States. As Justice Antonin Scalia wrote in his dissent from the court's 1988 decision upholding the constitutionality of the Office of the Independent Counsel, "this does not mean some of the executive power, but all of the executive power." (His argument was proved prescient in 1999 when Congress let the law authorizing the independent counsel lapse.)

    It must be noted that the legal analysis of the president's inherent powers Yoo used in the torture memos was so shoddy the Bush administration was forced to withdraw them after they became public. Additionally, the Justice Department reportedly specifically repudiated Yoo's claim that the Fourth Amendment had "no application to domestic military operations."

    Furthermore, at least one of the Bush administration's claims of executive authority went too far even for Scalia. In Hamdi v. Rumsfeld, a case in which a majority of justices rejected the Bush administration's power to hold U.S. citizens as enemy combatants on U.S. soil without access to civilian courts, Scalia went even further than the majority. In a dissenting opinion joined by Justice John Paul Stevens, Scalia argued that Congress had not authorized the suspension of habeas corpus and therefore the executive branch did not have the power to hold citizens like Hamdi. (Congress has since authorized detentions in the Military Commissions Act.)

  • Further Disaster: Thiessen changes story after being caught in terror attack falsehood

    ››› ››› ADAM SHAH

    Washington Post columnist Marc Thiessen falsely claimed in his book that it is "indisputable" that "al Qaeda has not succeeded in launching one single attack on the homeland or American interests abroad" after the CIA interrogation program began. Caught in this blatant falsehood, Thiessen responded by completely changing his claim, saying that his "point" was that "[a]fter the CIA began interrogating high-value terrorists, al-Qaeda did not succeed in carrying out any attacks of a similar scale against American interests at home or abroad."

  • Thiessen's Disaster: For Thiessen to be right, everyone else must be wrong

    ››› ››› ADAM SHAH

    In addition to resting on numerous falsehoods, Washington Post columnist Marc Thiessen's argument that President Obama's national security policies have made the United States less safe relies on accusations that an FBI agent, terrorism experts, public officials, the former head of the British legal system, and journalists are either lying or wrong. In addition, if Thiessen's allegations were correct, numerous other people must also be wrong, including the 9/11 Commission, members of the Bush administration, Army interrogators and participants in detainee tribunals, and Catholic theologians.

  • Thiessen's Disaster -- Wash. Post columnist's anti-Obama book filled with falsehoods

    ››› ››› ADAM SHAH

    In his book, Courting Disaster, Washington Post's Marc Thiessen relies on numerous falsehoods to make his case that "America is in greater danger" than it had been during the Bush administration because of President Obama's anti-terrorism policies. Thiessen's falsehoods repeatedly overstate the effectiveness of Bush administration's interrogation and detention policies and downplay the abuses that took place.

  • Herridge blames "limits" of civilian justice system, but case reportedly "tainted by torture"

    ››› ››› TOM ALLISON

    During a Special Report segment, Catherine Herridge stated that a federal court ruling that ordered the release of Guantánamo Bay detainee Mohamedou Ould Slahi "exposed the limits" of the civilian criminal justice system. However, Slahi was not being prosecuted in the civilian justice system, and a military prosecutor reportedly refused to prosecute Slahi three years ago after he determined that the evidence against Slahi was obtained through torture.

  • Thiessen falsely claims all Senate Judiciary Republicans echoed Cheney's DOJ attack ad

    ››› ››› TOM ALLISON

    Washington Post columnist Marc Thiessen falsely claimed that "all the Republicans on the Senate Judiciary Committee" were asking questions similar to those posed by Liz Cheney's controversial ad campaign attacking Justice Department attorneys who previously represented terrorism detainees. In fact, Sen. Lindsey Graham -- a Republican member of the Judiciary Committee -- has joined numerous conservatives in criticizing the ad's attacks.

  • Thiessen brings "shameful" attacks on DOJ lawyers to Fox

    ››› ››› DIANNA PARKER

    Washington Post columnist Marc Thiessen appeared on Fox & Friends to promote his attacks on Department of Justice lawyers who previously represented or advocated for terror suspects and other detainees. Thiessen claimed the lawyers were "trying to spring terrorists out of Guantanamo" and again distorted DOJ lawyer Jennifer Daskal's past legal arguments.

  • Did Thiessen suggest DOJ lawyers are comparable to Tom Hagen?

    Blog ››› ››› ADAM SHAH

    In his March 8 Washington Post column, Marc Thiessen made a series of false and misleading attacks in an attempt to defend the witch hunt against Department of Justice lawyers who represented terror suspects in U.S. courts. One other argument Thiessen made also leaps out at me: Thiessen compares the DOJ lawyers who represented detainees to "mob lawyers." Thiessen wrote:

    Would most Americans want to know if the Justice Department had hired a bunch of mob lawyers and put them in charge of mob cases? Or a group of drug cartel lawyers and put them in charge of drug cases? Would they want their elected representatives to find out who these lawyers were, which mob bosses and drug lords they had worked for, and what roles they were now playing at the Justice Department? Of course they would -- and rightly so.

    Yet Attorney General Eric Holder hired former al-Qaeda lawyers to serve in the Justice Department and resisted providing Congress this basic information. In November, Republicans on the Senate Judiciary Committee sent Holder a letter requesting that he identify officials who represented terrorists or worked for organizations advocating on their behalf, the cases and projects they worked on before coming to the Justice Department, the cases and projects they've worked on since joining the administration, and a list of officials who have recused themselves because of prior work on behalf of terrorist detainees.

    When someone uses the phrase "mob lawyers," what comes to mind? The first image that I thought of was that of Tom Hagen, the attorney (or consigliere) for the Corleone crime family in the Godfather saga. Hagen was intimately involved in the Corleones' crimes. It turns out that so-called "mob lawyers" have been convicted themselves for criminal activities. Of course, there is no evidence that the lawyers Thiessen is targeting have been involved in any criminal activity.

    I don't mean to suggest that people accused of being involved in organized crime aren't entitled to an attorney. They are. And lawyers who have representing a person accused in an organized crime case should not be disqualified from joining the Department of Justice and being "put ... in charge of mob cases."

    But Thiessen did not refer simply to "lawyers who represent defendants in organized crime cases"; he used the phrase "mob lawyers," with all the suggestion of criminality that that loaded term entails.

    It also bears noting that The Washington Post itself has condemned the people involved in the attacks on the DOJ lawyers for acting as if those lawyers "had committed a crime:"

    It is an effort to smear the Obama administration and the reputations of Justice Department lawyers who, before joining the administration, acted in the best traditions of this country by volunteering to take on the cases of suspected terrorists. They now find themselves the target of a video demanding that they be identified, as if they had committed a crime or needed to be exposed for subverting national security.

    [...]

    It is important to remember that no less an authority than the Supreme Court ruled that those held at the U.S. Naval Base at Guantanamo Bay, Cuba, must be allowed to challenge their detentions in a U.S. court. It is exceedingly difficult to exercise that right meaningfully without the help of a lawyer. It is also worth remembering that the Bush administration wanted to try some Guantanamo detainees in military commissions -- a forum in which a defendant is guaranteed legal representation. Even so, it took courage for attorneys to stand up in the midst of understandable societal rage to protect the rights of those accused of terrorism. Advocates knew that ignorance and fear would too often cloud reason. They knew that this hysteria made their work on these cases all the more important. The video from Keep America Safe proves they were right.

  • Wash. Post's Thiessen takes attacks on DOJ lawyers -- which Post condemned -- to another level

    Blog ››› ››› ADAM SHAH

    As Glenn Greenwald and Jamison Foser have pointed out, The Washington Post suggested that right-wing attacks on Department of Justice attorneys who have represented terror suspects are based on "ignorance," "fear," and "hysteria" and published an op-ed calling the attacks "shameful," even though Bill Kristol, one of the leading proponents of the smear, writes a regular column for the Post.

    But Kristol is not alone.

    Marc Thiessen, a weekly columnist for the Post has not only attacked the DOJ attorneys who represented terror suspects, but has also attacked "senior partners" at law firms in which other lawyers took on such cases for allowing "work on behalf of America's terrorist enemies" to continue.

    From a chapter titled "Double Agents" in Thiessen's book, Courting Disaster: How the CIA Kept America Safe and How Barack Obama Is Inviting the Next Attack:

    Some argue that, with the exception of [Neal] Katyal, none of these lawyers directly represented terrorists, so they should not be held responsible for the actions of other lawyers in their firms. That might be true for a junior partner. But the fact is, [Department of Justice officials Eric] Holder, [Lanny] Breuer, [David] Ogden, [Thomas] Perrelli, and [Tony] West were all senior partners at their firms at the time when these firms were deciding whether or not to accept terrorist clients. They had the power to say no and stop this work on behalf of America's terrorist enemies. They chose not to do so.

    I spoke to several partners at major law firms that have chosen not to represent terrorists. None wanted to criticize their competitors on the record, but all agreed that the work would not have gone forward without the approval of Holder and his colleagues. One attorney explained that law firms pride themselves on collegiality, and if one or more partners expressed opposition, that is sufficient to kill a pro bono project. He said the reason his firm does not represent terrorists is because partners like him spoke up and made clear they opposed the firm doing such work. If such opposition could stop this work at his firm, this lawyer says, Holder could have done the same at Covington. "Eric Holder's law firm did this with the full blessing and support of Eric Holder," he says. "He's responsible for it." [Pages 257-58]

    At the end of the chapter, Thiessen claimed that the attorneys who took on the cases of terror "are aiding and abetting America's enemies," which is pretty close to the constitutional definition of treason -- providing "aid and comfort" to America's enemies:

    The attorneys fighting these cases -- some intentionally, others unwittingly -- are practicing what has come to be called "lawfare." They are aiding and abetting America's enemies by filing lawsuits on their behalf, and turning U.S. courtrooms into a new battlefield in the war on terror. These lawsuits tie our government in knots and make it more difficult for our military and intelligence officials to defend our country from terrorist dangers. And they undermine America's moral authority by echoing the enemy's propaganda that America systematically abuses human rights. [Page 274]

    Regarding the attacks against lawyers who represented terror suspects, the Post March 5 editorial stated:

    It is important to remember that no less an authority than the Supreme Court ruled that those held at the U.S. Naval Base at Guantanamo Bay, Cuba, must be allowed to challenge their detentions in a U.S. court. It is exceedingly difficult to exercise that right meaningfully without the help of a lawyer. It is also worth remembering that the Bush administration wanted to try some Guantanamo detainees in military commissions -- a forum in which a defendant is guaranteed legal representation. Even so, it took courage for attorneys to stand up in the midst of understandable societal rage to protect the rights of those accused of terrorism. Advocates knew that ignorance and fear would too often cloud reason. They knew that this hysteria made their work on these cases all the more important. The video from Keep America Safe proves they were right.

    The Post also published a March 5 op-ed by Walter Dellinger, former head of DOJ's office of legal counsel and former acting Solicitor General stating that "[t]he only word that can do justice to the personal attacks on these fine lawyers -- and on the integrity of our legal system -- is shameful. Shameful." From Dellinger's op-ed:

    It never occurred to me on the day that Defense Department lawyer Rebecca Snyder and Lt. Cmdr. William Kuebler of the Navy appeared in my law firm's offices to ask for our assistance in carrying out their duties as military defense lawyers that the young lawyer who worked with me on that matter would be publicly attacked for having done so. And yet this week that lawyer and eight other Justice Department attorneys have been attacked in a video released by a group called Keep America Safe (whose board members include William Kristol and Elizabeth Cheney) for having provided legal assistance to detainees before joining the department. The video questions their loyalty to the United States, asking: "DOJ: Department of Jihad?" and "Who are these government officials? ... Whose values do they share?"

    [...]

    That those in question would have their patriotism, loyalty and values attacked by reputable public figures such as Elizabeth Cheney and journalists such as Kristol is as depressing a public episode as I have witnessed in many years. What has become of our civic life in America? The only word that can do justice to the personal attacks on these fine lawyers -- and on the integrity of our legal system -- is shameful. Shameful.

  • Memo to right-wing media: Bush DOJ lawyers also represented terror suspects

    ››› ››› ERIC SCHROECK

    Conservative media figures have recently attacked President Obama and the Department of Justice for employing lawyers who previously represented terror suspects or supported their legal arguments in their private practices. However, Bush administration lawyers also reportedly represented Guantánamo Bay detainees before working for the Justice Department.