The federal judge who helped draft Justice Department memos on torture has set up a legal defense fund to pay the costs of defending against possible disciplinary or impeachment proceedings. Jay Bybee, a U.S. Court of Appeals judge in Las Vegas, quietly set up the fund last July following widespread news reports that he and a former deputy, John Yoo, were the focus of a long-running investigation by the Justice Department’s internal ethics unit, the Office of Professional Responsibility (OPR), over their role in crafting the memos.

Attorney General Holder said yesterday he expected the Justice Department would finally release a version of the OPR report by the end of the month. Judge Bybee is evidently prepared for the rather nettlesome case of his former employer considering him unfit to practice law: Isikoff reports that he’s got Liz Cheney’s advocacy group, Keep America Safe, on his side.

One interesting question arises. Bybee’s former deputy John Yoo helped him craft the torture memos in 2002. Yoo faces similar criticism and legal difficulty, and is reportedly implicated in the OPR report alongside his old boss. But Yoo’s personal legal expenses are, risably, covered by the American taxpayer. Will Bybee similarly stick us with the bill?

The White House was also dissatisfied with Craig’s handling of political appointments, believing that Craig should have spent more time working with the Justice Department and with Congress to force through some of the president’s most eagerly awaited principals, like Dawn Johnsen, whose nomination to be head of the Justice Department’s Office of Legal Counsel still languishes. The issue of nominations is especially sensitive for the president, a constitutional law lecturer in his former life.

My colleague Daphne Eviatar has reported extensively on the parliamentary machinations keeping Johnsen bottled up in the Senate.

So it’s significant that today they’ve released a report calling on the United States to follow its legal obligation to prosecute the leaders in the U.S. government responsible for the “torture, cruel and inhuman treatment” of detainees during its own “war on terror.”

“Investigations and prosecutions should focus on the engineers of official policies that were the basis of illegal abuses, to send a clear signal that the absolute prohibition of torture and the ban on cruel and inhuman treatment will be respected by the United States,” the report said, adding that if the U.S. government fails to initiate prosecutions, then other countries will take up the cause. Italy, for example, recently convicted 23 Americans for their involvement in “extraordinary renditions.”

“Failing to hold accountable the architects and overseers of a policy of abuse undermines the U.S. justice system and the fundamental idea that law provides a check on power,” Alex Boraine, acting president of ICTJ, said in a statement today. “As we have seen in countless examples around the world, abuse of power by allowing torture and cruel treatment can tear down what the law and democracy have built.”

While there’s support among many Democrats for some sort of accountability, whether through criminal prosecutions or an independent truth commission, Republicans vehemently resist any suggestion that the Bush administration even did anything wrong.

Since Attorney General Eric Holder announced on Friday that the Justice Department would try the alleged 9/11 co-conspirators in a U.S. federal court in New York, some Republicans have denounced the move as an illegitimate attempt to put the Bush administration, rather than the terrorists, on trial.

“The government is going to try to put Khalid Sheik Mohammed on trial. Defense lawyers will try and put the government on trial,” former New York City Mayor Rudy Giuliani told Fox News.

Tom Ridge, head of the Department of Homeland Security during the Bush administration, added that any effort to use the 9/11 trial to “delve into a fishing expedition” to go after Bush officials is “wrong and unconscionable.”

Meanwhile, in The Wall Street Journal today, former Deputy Assistant Attorney General John Yoo — a potential target of any future criminal prosecution of Bush officials — attacked the decision to try the 9/11 detainees in federal court as a dangerous mistake. “The treatment of the 9/11 attacks as a criminal matter rather than as an act of war will cripple American efforts to fight terrorism,” Yoo wrote. “It is in effect a declaration that this nation is no longer at war.”

The Italian court convicted in absentia a CIA station chief and 22 other agents for abducting a Muslim cleric and sending him to Egypt, where he was tortured. Similarly, a British court recently ruled that a former detainee and torture victim has the right to obtain documents to prove he was mistreated — despite U.S. objections.

In contrast, in a recent case here in the United States, involving the abduction and extraordinary rendition of Canadian citizen Maher Arar to Syria by U.S. authorities, a federal appeals court ruled that Arar — who turned out to be innocent — has no right to redress.

Arar, as we now know, was arrested based on faulty intelligence at John F. Kennedy airport in New York, denied access to a lawyer, and shipped off to Syria for interrogation under torture. Both the Syrian and Canadian governments have since confirmed that Arar had done nothing wrong, and Arar sued U.S. officials for his unlawful treatment. Yet the Second Circuit Court of Appeals in New York recently ruled that the courts should not interfere in cases involving national security and foreign affairs — that’s for the executive and legislative branches alone.

As The Times notes today in an editorial, the ruling was an abdication of the role of the federal judiciary, which, after all, is the branch of government charged with upholding the rights granted in the U.S. Constitution.  Surely the right to be free from groundless abduction, rendition and torture is among them. As The Times’ editorial board puts it: “The ruling distorts precedent and the Constitutional separation of powers to deny justice to Mr. Arar and give officials a pass for egregious misconduct.”

What The Times neglects to mention is that another case, filed just yesterday on behalf of a U.S. citizen, raises precisely the same issues — and could meet the same fate. This time, however, as I explained yesterday, the plaintiff is a U.S. citizen, born and raised in New Jersey, abducted by U.S. authorities and held in three different African prisons where, he says, he was tortured and threatened by FBI agents, among others. He was eventually returned home without charge.

The judges who decided the Arar case earlier this month didn’t uniformly agree that he ought not be allowed to make his case in court. In fact, the 7-4 opinion spawned four dissenting opinions that are among the most eloquent statements on the role of the judiciary in upholding the U.S. Constitution that I’ve ever read.

As Judge Barrington Parker wrote, the court’s decision “risks a government that can interpret the law to suits its own ends, without scrutiny.” Parker cited a memo from former Deputy Assistant Attorneys General John Yoo and Robert Delahunty in the Bush Justice Department’s Office of Legal Counsel advising the top lawyer at the Pentagon in 2002 that the President enjoys “complete discretion” in conducting operations overseas, and that the Constitution’s Bill of Rights — such as the Fifth Amendment right to due process and the Eighth Amendment’s prohibition on “cruel and unusual punishment” — do not apply to overseas interrogations.

These latest documents provide a glimpse of the early struggles between the FBI and the Pentagon over just how to conduct the “war on terror” and how to interrogate and treat that war’s detainees. Sadly, they reveal that the FBI knew perfectly well — and repeatedly warned Defense Department officials, as well as Justice Department lawyers — that the abusive interrogation techniques being used on detainees at Guantanamo Bay were likely to be ineffective and make subsequent prosecutions impossible.

As one memo says, while the interrogation techniques based on tactics used in the U.S. Army Search, Escape, Resistance and Evasion (SERE) training “may be effective in eliciting tactical intelligence in a battlefield context, the reliability of information obtained using such tactics is highly questionable, not to mention potentially legally inadmissible in court.”

That memo was written in May 2003.  The “enhanced” interrogation techniques, such as stress positions and prolonged sleep deprivation, were still being used and justified in memos as late as July 2007. The memo raises several important questions. Did the Office of Legal Counsel lawyers drafting those later memos for the CIA not know about the FBI’s earlier objections? Or did they just dismiss them out of hand? Were they told to ignore those earlier conclusions?

Then there’s the fact that senior officials from the Criminal Investigative Task Force, including the chief psychologist with the Naval Criminal Investigative Service “repeatedly argued for implementation of a rapport-based approach” and “lamented the fact that many DHS [Defense Human Intelligence Services] interrogators seem to believe that the only way to elicit information from uncooperative detainees is to use aggressive techniques on them.”

“Despite objections raised by the [Behavioral Analysis Unit of the FBI], the DHS initiated an aggressive interrogation plan for #63,” who elsewhere in the document is identified as Mohammed al-Qatani. “This plan incorporated a confusing array of physical and psychological stressors which were designed, presumably, to elicit #63’s cooperation. Needless to say, this plan was eventually abandoned when the DHS realized it was not working and when #63 had to be hospitalized briefly.”

Officials from the Criminal Investigative Task Force and the Behavioral Analysis Unit drafted a letter “reiterating the strengths of the FBI/CITF approach” and providing “a detailed historical record of the development of interagency policies regarding aggressive interrogation techniques in GTMO.” The letter also argued that they were a bad idea.

Not only did the officials not succeed in convincing DHS to abandon the techniques, but the document described how the military and DHS inaccurately portrayed to the Pentagon that the FBI’s Behavioral Analysis Unit approved of and helped design the very techniques that the BAU warned would backfire.

Although we knew before that the FBI had disagreed with the so-called “enhanced” interrogation techniques and refused to participate in them, this latest release of previously classified information reveals the extent to which FBI officials made both the legal and practical case to senior Pentagon and Justice Department officials for why the usual rules on interrogations should be followed.

That they were so blatantly ignored suggests more than just bad judgment. It suggests a deliberate indifference to the facts and the law, which cries out for a more thorough investigation.

09 Memos

As I reported earlier this week, Republicans have stalled Johnsen’s nomination with their ambivalence about supporting cloture and the leadership’s refusal to agree to a time limit for debate on the vote. Although Johnsen clearly has the 51 votes she needs to be confirmed and may have enough votes to support cloture, Republicans’ insistence on 30 hours of debate before the Senate can actually vote on the nomination has made it difficult for Reid to put the vote on the calendar.

Johnsen has angered Republicans by being openly critical of OLC policies under the Bush administration, and by supporting abortion rights 20 years ago as a lawyer for the National Abortion Rights Action League, or NARAL (now NARAL Pro-Choice America).

Johnsen may have more support now than she did at the time of her hearing, however, since Sen. Arlen Specter of Pennsylvania, then a Republican and one of her harshest questioners back in February, has switched parties. After saying he opposed Johnsen’s nomination back in April, Specter recently met with her a second time and said he is reconsidering his position.

Update: Here’s a copy of the letter pressing for Johnsen’s confirmation sent to Sen. Reid today by a coalition of civil and human rights groups.

Dawn Johnsen (Indiana University photo)

When the Senate Judiciary Committee held hearings on the nomination of Dawn Johnsen to head the Justice Department’s Office of Legal Counsel in February, one of her harshest questioners was Sen. Arlen Specter, then a Republican from Pennsylvania facing a likely challenge from the conservative former Rep. Pat Toomey. Even then, though, Specter passed on the committee vote, and although in April he said he was considering supporting a filibuster against Johnsen, now he says he’s still considering her nomination.

That’s not going to get Johnsen any nearer to a vote, however. Seven months after her nomination was approved by the Senate Judiciary Committee, she still hasn’t gotten an up or down vote from the full Senate. Yet she’s been nominated for a critical position in the Justice Department — the senior lawyer to advise the president on the legality of his administration’s policies. Johnsen’s supporters are irate. When asked, Republican senators refuse to say where they stand on Johnsen, whether they would support a vote on her nomination, or if they plan to fillibuster.

Illustration by: Matt Mahurin

At her confirmation hearing, Johnsen was pressed on her views of executive power and the war on terror, both of which she’d written about as a law professor. But she also took heat from Republicans for a footnote in a brief she co-authored with ten other lawyers 20 years ago that suggested an analogy between depriving a woman of the right to have an abortion and slavery.

“When I read in your writings that abortion bans are a violation of the 13th Amendment ban on slavery,” Specter chastised Johnsen at her confirmation hearing, “that seems to me candidly beyond the pale.”

Johnsen, a law professor at the University of Indiana who served in the Office of Legal Counsel under President Clinton, responded that, as far as she could remember, she hadn’t actually equated outlawing abortion with slavery, but was just making an analogy. And the point, which may have actually been drafted by any of the ten other lawyers listed on the brief, was tangential to the core of the brief’s argument. Republicans, however, continued to use it against her. Anti-abortion rights groups, meanwhile, repeated the argument that she “compared pregnancy to slavery” and urged Senators to vote against her nomination.

Despite the opposition, Johnson is widely believed to have the 51 votes she needs for confirmation, and possibly 60 for cloture. Even if she doesn’t ultimately win support from Specter or from Sen. Ben Nelson (D-Neb.), who has said he’ll oppose her, she does have the support of her home state Republican, Sen. Richard Lugar. And she could win votes from moderate republicans such as Sens. Olympia Snowe and Susan Collins of Maine. The problem seems to be not simply support for a vote, but also that if there is a vote, Republicans won’t agree to any time limits on the debate over her nomination, no matter how much support she has. That means her opponents could take up to 30 hours of precious floor time debating her nomination while Congress debates key legislation on health care, climate change and the economy.

The result is that President Obama is unable to have the person he’s chosen to lead a critical office in the Department of Justice in place. The Office of Legal Counsel advises the president on the legal implications of the policies he wants to implement. Although formerly a little-known office, the OLC came under intense scrutiny and criticism during the Bush administration after its lawyers, John Yoo, Jay Bybee and Stephen Bradbury, issued a series of memos that defined torture extremely narrowly to allow a range of physical and mental abuse of detainees during interrogations, including waterboarding, weeks of sleep deprivation, stress positions and sexual humiliation. The office also authorized warrantless wiretapping and said that the President can suspend the Bill of Rights on U.S. soil during wartime.

Supporters stress that Johnsen’s confirmation is important because she’d be the chief lawyer responsible for advising the president on the constitutionality of a range of government practices and policies. “We saw the potential importance of OLC during the Bush administration when it was misused and pressured into giving and parotting the kinds of answers that the White House wanted,” says Marcia Greenberger, co-President of the National Women’s Law Center. Indeed, the lawyers from that Office during the Bush administration were investigated by the Office of Professional Responsibility to determine if their legal advice to the president strayed so far beyond reasonable legal interpretations as to violate legal ethics rules. The report of that investigation, although reportedly drafted last year, has not yet been released.

Johnsen, in both scholarly articles and blog posts, has written that it’s critical for the Office of Legal Counsel to use independent legal judgment and to be willing to say “no” to the president when necessary.

“What is key is to have a person of Dawn Johnsen’s caliber and independence who also has the confidence and trust of the administration,” said Greenberger. “That she has no ax to grind and is truly giving its best views.” In addition to winning the support of civil rights groups, Johnsen has won bipartisan support from previous OLC leaders, including Walter Dellinger, a former acting solicitor general who led the OLC under  Clinton, and Douglas Kmiec, a professor of Constitutional Law at Pepperdine University and head of the OLC for Presidents Ronald Reagan and George H.W. Bush. Kmiec has said he admires her “independence of mind.”
Johnsen was one of many critics of that office’s legal opinions during the Bush presidency. And while that won her praise from many Bush critics, it also earned her the ire of many Republicans.

In voting against her nomination in the Senate Judiciary Committee, Sen. John Cornyn (R-Texas) accused Johnsen of making “numerous intemperate statements” and “ad hominem attacks” on Republicans in her popular writings. Cornyn also accused Johnsen of “retreating into the law-enforcement paradigm” in anti-terrorism policies by not supporting the view that the United States is at “war” with terrorism. “As I see it, Dawn Johnsen has not demonstrated the seriousness and necessary resolve to address the national security challenges we face,” Cornyn said.

“She’s being challenged because she had the temerity to question internally policies of the office supporting the administration’s position on torture, interrogation, and wiretapping,” said Wade Henderson, president of the Leadership Conference on Civil Rights, who says he’s “working aggressively” to get her confirmed. “All three of those are areas that spoke directly to the integrity and substance of the office.”

Johnsen was hardly the only law professor to criticize the office’s opinions. Former OLC leader under President George W. Bush and Harvard Law Professor Jack Goldsmith famously criticized some of the office’s opinions in his book, “The Terror Presidency,” writing that some were “deeply flawed: sloppily reasoned, overbroad and incautious in asserting extraordinary constitutional authorities on behalf of the president….I was astonished, and immensely worried, to discover that some of our most important counterterrorism policies rested on severely damaged legal foundations.”

Goldsmith wrote that after he left the OLC in 2003, however, whereas Johnsen is now being forced to confront her criticisms during the highly politicized confirmation process to be allowed to run the office.

Johnsen’s supporters are angry. “Dawn is caught up in a much larger fight that goes beyond her individual nomination,” said Henderson. “Republican Senate leadership, determined in particular by Sen. McConnell, has chosen to raise the bar for the confirmation of key personnel in the Obama administration in what appears to be a concerted effort to frustrate the new president’s ability to staff key offices with people of his choice. It’s turned into a partisan tug of war over the most basic positions in federal government, with dire implications for the effectiveness of the president’s ability to achieve his goals.”

The confirmation of State Department Legal Advisor Harold Koh, formerly the Dean of Yale Law School, was held up for about four months. And Civil Rights Division legal director Thomas Perez waited six months for confirmation.

“It’s a timing issue,” said Marge Baker, Executive Vice President at People for the American Way, which has been pressing for Johnsen’s confirmation. “They’re about to take up a debate on health care issues.” Even if there are enough votes to support cloture, the rules allow up to 30 hours for post-cloture debate before there is a final vote. “That’s a huge chunk of time when you have a lot to move,” says Baker.

The assumption is that Republicans will insist on taking all of that time. Calls to Sens. McConnell and Jeff Sessions (R-S.C.), the ranking Republican leader on the judiciary committee, were not returned.

A spokesman for Sen. Susan Collins (R-Maine) said she still has not decided how she’ll vote on the Johnsen nomination. A call to Sen. Olympia Snowe’s office was not returned. Women’s groups have targeted both moderate Maine Republicans to urge them to support Johnsen.

The Senate Judiciary Committee voted 11-7 to support Johnsen’s nomination in a party-line vote in March. She’s been awaiting a full Senate vote ever since.

Earlier this week, Sen. Patrick Leahy (D-Vt.) lamented the difficulty of approving both judicial and executive nominations since January, noting that four Assistant Attorney General nominations, including Johnsen’s, remain pending without a vote. Meanwhile, the nomination of Federal Judge William Sessions of Vermont to be Chairman of the United States Sentencing Commission has been stalled for five months, even though he’d previously been confirmed twice as a member of the same Commission. Senate Majority Leader Harry Reid (D-Nev.) had to file a cloture motion to end the obstruction.

“During the 17 months I chaired the Judiciary Committee during President Bush’s first term, we confirmed 100 of his judicial nominees and 185 of his executive nominees referred to the Judiciary Committee,” said Leahy. “And yet, 10 months into President’s Obama’s first term, we have confirmed only two of his nominations for circuit and district courts and 40 of the executive nominees that have come through our Committee.”

With health care and other major legislation the filling up the Senate’s time these days, it’s not clear when the pace of those confirmations will pick up.

While that sounds good, remember that the Detainee Treatment Act was interpreted by the Bush administration’s Justice Department to allow such “enhanced interrogation techniques” as sleep deprivation, food deprivation, shackling, forced standing in stress positions, and a variety of “corrective techniques” that include physical slaps and grabs – either alone or in combination. The new “protections” in the MCA amendments are therefore not all that reassuring.

The amendments also continue to allow judges to admit hearsay evidence, even though the source of the evidence is unavailable for cross-examination by defense counsel. Classified evidence can also still be used against a defendant, although he does not have the right to see it. Protections were added, however, so that the procedures used to protect classified evidence essentially mirror those used in a civilian federal court.

This post has been updated.

The OLC is the office that housed such Bush-era luminaries as John Yoo and Jay Bybee, and issued the infamous “torture memos” that defined torture so narrowly that even waterboarding — which had always been considered a form of torture before, even by the United States — now passed legal muster. Johnsen was one of many critics of that office’s legal opinions during the Bush presidency, earning her the lingering ire of many Republicans.

Among them was Specter, who, during her confirmation hearing in February, took the lead in painting her as a radical left-wing ideologue. In April, even after switching parties, he reaffirmed that he was still opposed to her nomination. As a result of the staunch opposition of Specter, Sen. Ben Nelson (D-Neb.), and most Republicans, the Office of Legal Counsel has gone without a confirmed leader to advise the president on critical legal issues, such as the use of warrantless wiretapping and the treatment and trials of suspected terrorists and “war on terror” detainees.

But now, it looks like Specter may be changing his mind. Specter’s press secretary, Kate Kelly, emailed me Thursday with this:

Senator Specter has several concerns about Ms. Johnsen’s nomination, including her views on executive power and abortion. Senator Specter is solidly pro-choice, but he disagrees with her position equating limitations with involuntary servitude. Senator Specter had a second meeting with her to get clarification on her positions and he is still considering her nomination.

As I pointed out during Johnsen’s confirmation hearing, Specter grilled her on a footnote buried in a friend-of-the-court brief she’d co-authored with 10 other lawyers representing 77 different public interest organizations, 20 years ago in an abortion rights case when she was a lawyer for the National Abortion Rights Action League. The footnote said that laws curtailing the right to an abortion “are disturbingly suggestive of involuntary servitude, prohibited by the 13th Amendment, in that forced pregnancy requires [a woman] to provide continuous physical service to the fetus in order to further the state’s asserted interest.”

“When I read in your writings that abortion bans are a violation of the 13th Amendment ban on slavery,” Specter chastised Johnsen at her confirmation hearing, “that seems to me candidly beyond the pale.”

Johnsen, flustered, responded that, as far as she could remember, she hadn’t actually equated outlawing abortion with slavery, but was just making an analogy. Anyway, the point, while creative, was pretty tangential to the core of the brief’s argument. It was, after all, relegated to footnote 23. But that clearly did not satisfy Specter, who remained firmly opposed to her nomination.

Until Thursday.

The change is consistent with Specter’s overall transformation, captured well by Nate Silver’s Specterometer at FiveThirtyEight.com. According to Silver’s analysis, after switching parties on April 28th, Specter started out voting with the Democrats on “contentious votes” about two-thirds of the time. But since Rep. Joe Sestak (D-Pa.) announced on May 27 that he plans to challenge Specter in the 2010 Democratic primary, Specter has become a far more loyal party member, voting with the party on “contentious votes” 97 percent of the time.

That was Silver’s count in July, and I don’t have the count to date, but it does give some indication as to why Specter decided to meet with Johnsen a second time, and is now “reconsidering” which way he’ll vote on her nomination.

Take the nomination of Dawn Johnsen, Obama’s pick to the head the Office of Legal Counsel, which provides critical legal advice to the president. The OLC, of course, is the same office that got into all sorts of trouble under the Bush administration, and several of its former lawyers are the subject of a much-awaited report from the Justice Department’s Office of Professional Responsibility, which reportedly has concluded that the lawyers violated legal ethics in recommending President George W. Bush permit the abuse of detainees and other suspensions of constitutional rights in the so-called “war on terror.” That report, although reportedly drafted last year, is apparently still being reviewed by the very lawyers it apparently censures, and is likely being edited and potentially watered-down as a result.

But even as President Obama says he wants to look forward, not back, he’s not exactly pushing very hard to get a new director for that Office of Legal Counsel confirmed so she can lead his legal department on its forward march. The nomination of Johnsen, a highly-respected law professor who was second-in-command at OLC under President Clinton, was voted out of the Senate Judiciary Committee with full Democratic support in March. She has yet to get a full Senate vote — though back in May, Attorney General Eric Holder called her confirmation “probably my top priority.”

Republicans have made clear that they’ll fight the Johnsen nomination and slow the voting process down, even though it seems clear Democrats have enough votes to confirm her. GOP lawmakers have painted Johnsen as a radical for publicly challenging some of the advice given by the Office of Legal Counsel during the Bush years. And during her confirmation hearings, some Republicans seized on the fact that Johnsen was a lawyer for the National Abortion Rights Action League (NARAL) early in her career, and 20 years ago was one of ten co-authors on a brief in which there was a footnote that some Republicans found objectionable.

With the health care debate ongoing and the president staking much of the success of his first term on its outcome, the Obama administration may not have much interest in pushing the Johnsen nomination just now, since Republicans will likely insist on cloture — and the 30 hours of debate that comes with it — which would detract from the president’s current mission.

As a result, according to the White House and Senate staffers, a vote on the Johnsen nomination isn’t even on the calendar yet.