Grassley was just quoted by CNN pledging that he isn’t attacking anyone’s patriotism, he just wants disclosure. But when West went before the Senate Judiciary Committee on March 10, 2009 for his confirmation hearing — a committee on which both Sessions and Grassley sit — neither of them so much as asked West a single question, let alone a question about representing Lindh. (The transcript of the hearing is on Nexis, which is where I found it.) Again: It’s barely even due diligence to find West’s representation of Lindh. Here’s a livechat West did with The Washington Post about the case in 2002. The very first sentence of his National Journal profile mentions Lindh. And yet, given the chance to ask West about precisely the issue that so concerns Grassley and Sessions now, both refused to ask. What are they hiding? Did al-Qaeda pay them to stay silent????

Oh yeah, and as Adam Serwer noted this morning: Both Grassley and Sessions voted to confirm West, a man they now intimate is disloyal to the country he serves.

An individual who voluntarily “enter[s], or serv[es] in, the armed forces of a foreign state” (13) may be expatriated, “if (A) such armed forces are engaged in hostilities against the United States, or (B) such persons serve as a commissioned or non-commissioned officer.” 8 U.S.C. § 1481(a)(3). Nonetheless, no person may be expatriated unless he acts “with the intention of relinquishing United States nationality.” 8 U.S.C. § 1481(a). That said, although the performance of an expatriating act cannot be used as “the equivalent of or as conclusive evidence of the indispensable voluntary assent of the citizen,” such conduct “may be highly persuasive evidence in the particular case of a purpose to abandon citizenship.” Terrazas, 444 U.S. at 261 (quotations omitted).

Voluntary service in a foreign armed force that is engaged in hostilities against the United States has frequently been viewed as a particularly strong manifestation of an intention to abandon citizenship. As Attorney General Clark once opined, “it is highly persuasive evidence, to say the least, of an intent to abandon United States citizenship if one enlists voluntarily in the armed forces of a foreign government engaged in hostilities against the United States.” 42 Op. Att’y Gen. at 401. See also 22 C.F.R. § 50.40(a) (although “intent to retain U.S. citizenship will be presumed” when an individual “naturalize[s] in a foreign country” or “take[s] a routine oath of allegiance,” no such presumption is provided “[i]n other loss of nationality cases”).

So a couple of things here. First, al-Qaeda isn’t the agent of any state, so it’s unclear whether al-Qaeda would fall into this framework. Second, even if it does, al-Awlaki is not necessarily a member of al-Qaeda. Third, at the time Yoo wrote this memo, the Bush administration had three American citizens in its custody that it contended were agents of either al-Qaeda or the Taliban: Yaser Hamdi, Jose Padilla and John Walker Lindh. (Hamdi later claimed to renounce his citizenship.) And it did not claim any of them implicitly renounced their citizenship. While I think Yoo’s 2002 memo is technically still operative, it hasn’t been a guide to either the Bush or Obama administration’s behavior. I’m referencing it just to show that the citizenship-and-counterterrorism question has been around for years now.

As Daphne’s been writing, OPR has been rather solicitous of the Bush administration lawyers who provided legal cover for the CIA’s “enhanced interrogation” program. They got to see the draft, comment on it, and then the office took their perspectives into account. That’s in keeping with standard practice to permit OPR targets a right of due response, the department explained. “In the past,” wrote Assistant Attorney General Ronald Welch to Sen. Richard Durbin (D-Ill.) on May 4, “former Department officials who were subjects of OPR investigations typically have been permitted to appeal adverse OPR rulings to the Deputy Attorney General’s Office.” In keeping with that spirit, Welch continued, former Attorney General Michael Mukasey, his deputy and the OPR chief agreed to “afford the subjects the chance to respond to the report prior to any release.” Such a move, they reasoned, was “fair and reasonably correlates with the process usually applicable to OPR investigations relating to former employees.”

Tell it to Jesselyn Radack. Radack was an early casualty of the Bush Justice Department. In 2001, as a department lawyer in the Professional Responsibility Advisory Office, she advised the FBI that it couldn’t interrogate John Walker Lindh, the so-called American Taliban captured in Afghanistan, without affording him counsel. It happened anyway. Here’s what happened next, according to Jane Mayer in the March 10, 2003 New Yorker:

[Radack] received a “blistering” performance review. It never mentioned her advice in the Lindh matter, but it severely questioned her legal judgment. She was advised to get a new job; otherwise, the performance review would be placed in her permanent file. Radack, who had received a merit bonus the year before, quickly found a job with a private law firm.

Worse, Radack learned that the department made an incomplete filing to the judge in the Lindh case, who had requested the department’s full record of internal discussions on the interrogations. Radack’s attempts to correct the record by providing the judge with the complete discussion ended up getting printed in Newsweek. Then Radack learned, as she recounted this morning in a Daily Kos diary, that OPR had opened a case file on her.

Far from allowing her a chance to contribute to OPR’s investigation,  the office didn’t even solicit her perspective before sending a letter to the Maryland Bar informing it of “possible professional misconduct” on Radack’s behalf. “[W]e take allegations of misconduct by Department personnel very seriously,” OPR Acting Counsel Judith Wish wrote to the Attorney Grievance Commission of Maryland in a letter the commission received on November 5, 2003 that Radack forwarded to me. But OPR hadn’t even reached a conclusion about Radack before going after her license to practice law. “Once our investigation … is complete … we will share the results of our investigation with you should you request you do so,” Wish wrote. Radack forwarded the letter to me this afternoon. Responded Radack’s lawyer on November 25, 2003 in a letter to wish, “We find your admission that OPR has yet to conduct any interviews into these allegations startling.”

Radack says she never got the chance to contribute to OPR’s investigation or appeal its ruling. She was suspended from practicing with her law firm until, eventually, the Maryland Bar Association cleared her name. All this for trying to ensure the Justice Department didn’t mislead a judge about the ways in which it handled the due-process rights of a U.S. citizen. Meanwhile, the attorney general will personally intercede with OPR to ensure that lawyers who provided legal cover for the CIA to engage in practices that the United States had previously prosecuted individuals for committing.

Here’s how Radack summed up the double standard in her dKos diary:

The bottom line is that I am the only Justice Department attorney to be referred to bar disciplinary authorities for advice I gave in a torture case—and my advice was to permit a U.S. citizen his rights.

If OPR wants to live up to its lofty mission of ensuring “that Department of Justice attorneys perform their duties in accordance with the high professional standards expected of the Nation’s principal law enforcement agency,” it can start with itself.

In my last post, I wrote about how Yaser Hamdi, the former Guantanamo prisoner and U.S. citizen picked up in Afghanistan and held for years without charge, first at Gitmo and then in the United States, promised not to bring any claims against the United States and agreed to give up his U.S. citizenship in order to be released to Saudi Arabia.  Although he never pled guilty to anything, and he consistently denied that he was a member of the Taliban or fighting the United States, Hamdi did sign an agreement saying that he “waives, forfeits, relinquishes and forever discharges” the United States and its agents from any claims of violating U.S. or international law.

After all, as his lawyer at the time, Geremy Kamens, told me earlier today, “when people are incarcerated, they want to get out and they’re willing to give up a lot of things.” Still, the U.S. government never asks ordinary criminal defendants in criminal cases to waive the right to sue for mistreatment, Kamens said, based on his experience as a federal public defender.

Well, in the case of John Walker Lindh, the 20-year-old from affluent Marin County, Calif., the government did just that. In addition to providing for a 20-year prison sentence, the agreement Lindh signed also included the following statement:

The defendant agrees that this agreement puts to rest his claims of mistreatment by the United States military, and all claims of mistreatment are withdrawn. The defendant acknowledges that he was not intentionally mistreated by the U.S. military.

In other words, “say what we tell you to and forgo your right to sue us and we’ll cut you a deal.”

Lindh also reportedly faced restrictions on his ability to speak publicly about his experiences, though those restrictions remain secret.

While 20 years might not seem like such a great deal right now, recall that Lindh was captured in 2001, early in President Bush’s “war on terror”, when the nation was in a panic and the “American Taliban” was being vilified. The United States had charged him in a lengthy 10-count criminal indictment with, among other things, providing material support to terrorists and conspiracy to kill U.S. nationals.

In the end, Lindh pled guilty to one count of supplying services to the Taliban and a charge of carrying weapons while fighting the Northern Alliance. And he waived his right to ever claim that he’d been mistreated.

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