The irresponsible Office of Professional Responsibility

Obama's Injustice Department, by Michael Stokes Paulsen
The irresponsible Office of Professional Responsibility.
The Weekly Standard, May 25, 2009, Volume 014, Issue 34

Government lawyers in the Department of Justice's Office of Professional Responsibility (OPR) appear to have leaked to the press parts of a confidential--and classified--draft report concerning the actions of Bush administration lawyers. The report calls for state bar associations to investigate, and perhaps discipline, attorneys who provided sensitive legal advice to President Bush's administration concerning the legal limits of coercive interrogation methods against high-level al Qaeda terrorists. That advice was, of course, controversial. It is now, in the current political climate, highly unpopular in certain circles. OPR has determined, apparently, that it was "unethical" to give it and that the lawyers involved should be punished.

How many things are wrong with this picture? From the perspective of legal ethics, constitutional law, and good government, I count at least five big problems.

1. The leak itself: Trial by innuendo and media exploitation is a McCarthyite tactic and is forbidden by the canons of legal ethics. So too is a breach of a lawyer's duty of confidentiality. Here, the original leak dates back to December, and it is not hard to discern a reason behind it: OPR's draft report was emphatically rejected by then-Attorney General Michael Mukasey. What's a bureaucrat to do, when his views are repudiated by his boss? In Washington, the answer is to leak the views to the press. But for a lawyer, such conduct is among the most fundamental of ethical violations: The ABA's Rules of Professional Conduct state: "A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent."

Violating client confidentiality is a grave ethical breach. It is the type of conduct for which shoddy lawyers are routinely disbarred or suspended from the practice of law. In this case, to the extent the disclosure involves classified information, such conduct may well be a federal crime.

If the leak came from, or involved the knowing assistance of, lawyers in the OPR or elsewhere, they should be investigated and disciplined. It is outrageous to think that government "ethics" lawyers would engage in such blatantly unethical conduct. Who watches these watchdogs? OPR's reported actions suggest that the real need is for an ethics investigation of the Justice Department's ethics office.

2. Unconstitutionally outsourcing federal ethics responsibility: Then there is OPR's cowardly attempt to farm out ethics investigations to state bar authorities. This is a transparently political maneuver. It is also contrary to longstanding federal policy--and arguably to the Constitution. The Department of Justice has maintained that regulation of the ethics and conduct of federal government attorneys is a matter for the federal government, acting through the attorney general--not for state bar panels. Were it -otherwise, state officials could interfere with the conduct of federal officials. (Constitutional lawyers will recognize this as a problem under the Supreme Court's famous 1819 decision in McCulloch v. Maryland, which held that state laws may not interfere with federal officers' actions.)

Why would OPR recommend this? To impose political punishment (of a sort) on Bush attorneys, but without bearing accountability. The Obama Justice Department is, rightly, reluctant to take "disciplinary" action itself with respect to the attorneys who advised the prior administration. In the first place, it is not clear what it meaningfully could do since those involved no longer work for the executive branch. Second, it would smack of partisan payback (which it is). What better solution than to outsource the task to "neutral" bar authorities? But this is a transparent façade that should fool no one. And it is a ruse that would come back to harm Democratic as well as Republican administrations: Whenever you disagree strongly with lawyers' advice from a previous administration, don't just change the legal advice, ask state bar associations to investigate. This is an excellent formula only if your goal is to chill candid legal advice and government service by licensing retaliation against lawyers in prior administrations with whose views you disagree.

3. Incompetently assessing lawyers' professional roles: OPR seemingly has no comprehension of the basic principle of legal ethics that a lawyer does not endorse everything his client may wish to do, within the bounds of the law. A lawyer acts properly when he seeks to help his client figure out exactly where the lines are. ABA Rule 1.2(d) provides that lawyers may not counsel clients to engage in conduct they know is illegal, but that a lawyer "may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law." It is plain from reading the memos involved that this is exactly what the Bush Justice Department lawyers were doing--discussing with their clients the legal consequences of what they proposed to do and endeavoring to assist them to ascertain the meaning and scope of the laws and constitutional provisions involved.

The leaks suggest that OPR has reviewed internal emails and found what it thinks are indications that the client agencies (the CIA or the White House) wanted the Department of Justice attorneys to come out a certain way or consider specific issues or arguments--that they had a desired or preferred outcome, which would permit harsh interrogations to go forward. Surprise! Clients always have a desired result in mind and would prefer that their lawyers say yes rather than no. Government agencies are, in my experience, no different from any other client in this regard.

But so what? In the absence of smoking-gun evidence that the lawyers had concluded that a proposed course of conduct was illegal, but that they then agreed to provide a "cover" memo whose advice was contrary to that conclusion, there is no ethical problem here at all. There is nothing wrong with a lawyer exhaustively studying all plausible legal avenues that might sustain a client's desired course of conduct. There is nothing wrong with exploring additional arguments that may support a client's proposed course of action, even if those might not have been part of a lawyer's initial thinking. There is nothing wrong even with a lawyer reconsidering or modifying his initial views in the course of such a process.

For OPR to suggest anything else--to suggest that this is a violation of legal ethics principles--would be, in my opinion, an incompetent analysis of the law of legal ethics.

4. Incompetence about competence: Which brings me to a fourth huge flaw in what OPR is said to be reporting: the suggestion that the Bush administration lawyers' legal work failed to satisfy professional standards of "competence." The notion is that failure to cite some specific case, or to discuss some historical precedent, renders the Bush team's legal analysis incompetent.

As a matter of legal ethics law, as applied to the memos in question, this is simply ludicrous. One may well disagree with the conclusions reached in one or more of the memos, or with some of the arguments contained therein. One may well think that the memos should have been written differently--discussed certain points not included, omitted certain arguments that were included; said less, said more. But there is a world of difference between Monday-morning quarterbacking and incompetent lawyering. Anyone who does not recognize that is not thinking straight--is either not himself a good lawyer or is blinded by a partisan agenda. One can make many fair criticisms of the legal memos, but incompetence is not a charge that can fairly be made.

5. Incompetence about the underlying law: Constitutional law, in addition to legal ethics, is one of my areas of teaching and scholarship. In my opinion, the most basic problem with any suggestion of incompetence is that the memos' essential legal conclusions are correct. There is a fundamental distinction in the law between what constitutes actual, legal "torture" under applicable standards and what may be harsh, aggressive, unpleasant interrogation tactics but not, legally, "torture." Reasonable people will come to different conclusions as to where that line is, but the Bush administration's lawyers' conclusions are certainly defensible and, I think, ultimately correct. As a matter of constitutional law, moreover, the Bush administration memos' most sweeping and categorical conclusion--that at all events no statute or treaty may limit the president's sole constitutional powers as military commander in chief to direct and conduct the use of U.S. force--is in my opinion unquestionably correct.

This view is informed by my experience both as a law professor and, nearly two decades ago, as an attorney in the Office of Legal Counsel (OLC) of the Department of Justice--the same office that provided the advice in question during President George W. Bush's administration. The types of constitutional and statutory arguments made in the disputed memos are consistent with longstanding OLC positions with respect to presidential power under Article II of the Constitution. They involve subtle niceties of constitutional law and history. OPR attorneys are, as a rule, not as conversant in such matters. To put the point in terms of legal ethics: Were the Office of Professional Responsibility to purport to pass judgment on the competence of the constitutional and statutory analysis of the OLC memos, it would be straying far beyond its areas of purported competence.

When I teach legal ethics, I tell my students that one aspect of competence is to know what you know and to know what you don't know, and to stay away from the latter. It is fair to wonder whether staff attorneys in OPR--whose actions with respect even to the law of legal -ethics appear so dubious--possess the requisite professional skill, expertise, and knowledge to competently evaluate (let alone second-guess) OLC lawyers' analysis of constitutional law, treaties, international law, and complicated criminal statutes. We will see: If OPR's leaked report becomes public and indeed takes the Bush team to task on grounds of professional legal competence, it will be fair to ask whether OPR attorneys really understand the substantive law they are talking about--or whether the charge of incompetence falls more heavily on their own heads.

Unethical leaks and confidentiality violations; outsourcing federal responsibilities; basic misunderstandings of legal ethics principles; incompetent analysis of constitutional, international, treaty, and statutory law. What more could be wrong with an ethics office's actions? It is hard to know for sure--without seeing OPR's report--the full extent to which it contains all of these problems. But leaked accounts of the OPR's draft report so far call that office's ethics and professionalism into question more than they do those of anyone else.

Michael Stokes Paulsen is university chair and professor of law at the University of St. Thomas, in Minneapolis. He was an attorney-adviser in the Office of Legal Counsel from 1989-91.

WaPo: The Supreme Court turns back a detainee's lawsuit against top Justice Department officials

Abuse and Accountability. WaPo Editorial
The Supreme Court turns back a detainee's lawsuit against top Justice Department officials.
WaPo, Tuesday, May 19, 2009

JAVAID IQBAL was one of the hundreds of Muslim or Arab men rounded up in the United States after Sept. 11, 2001, and held captive in a detention center in Brooklyn. Mr. Iqbal asserted that he was beaten, subjected to daily strip and cavity searches, deprived of adequate food, and forced to endure solitary confinement under extreme temperatures. The Pakistani native later sued dozens of U.S. officials, including then-Attorney General John D. Ashcroft and FBI Director Robert S. Mueller III, whom Mr. Iqbal claimed "each knew of, condoned, and willfully and maliciously agreed to subject" Mr. Iqbal to harsh conditions "as a matter of policy, solely on account of" his "religion, race, or national origin" and "for no legitimate penological interest."

In dismissing the claims against Mr. Ashcroft and Mr. Mueller yesterday, the Supreme Court concluded that Mr. Iqbal had not presented enough evidence to support his allegations. "It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims," a 5 to 4 majority ruled.

Government officials are usually -- and sensibly -- shielded from being sued personally for actions they take in their official capacities. Officials must be free to carry out their duties without the fear of being held personally liable for millions of dollars in damages and without the lost time and energy that inevitably accompanies lawsuits. That immunity, however, can be pierced if there is sufficient evidence that directly links officials to unconstitutional acts. This is the kind of evidence the majority concluded that Mr. Iqbal lacked against Mr. Ashcroft and Mr. Mueller.

The justices sent the case back to the New York-based U.S. Court of Appeals for the 2nd Circuit, which now must decide whether to allow Mr. Iqbal to try to present more evidence to substantiate his claims. Mr. Iqbal's claims against lower-level officials, including guards and supervisors at the detention center, are unaffected by the court's ruling.

Government officials must be held accountable, and there are several ways in which this can be accomplished, including by public hearings, elections, prosecutions and private lawsuits. The court has rightly set a high -- but not insurmountable -- bar when private litigation serves as the vehicle: Plaintiffs should name as defendants only those for which there is credible evidence of direct involvement in constitutional breaches. They can add defendants to the litigation when they amass information that directly and credibly implicates others.

How Washington Rations -- ObamaCare: a case study on cost control

How Washington Rations. WSJ Editorial
ObamaCare: a case study on cost control
WSJ, May 19, 2009

Try to follow this logic: Last week the Medicare trustees reported that the program has an "unfunded liability" of nearly $38 trillion -- which is the amount of benefits promised but not covered by taxes over the next 75 years. So Democrats have decided that the way to close this gap is to create a new "universal" health insurance entitlement for the middle class.

Such thinking may be a non sequitur, but it will have drastic effects on the health care of all Americans -- and as it happens, this future is playing out in miniature in Medicare right now. Desperate to prevent medical costs from engulfing the federal budget, the program's central planners decided last week to deny payment for a new version of one of life's most unpleasant routine procedures, the colonoscopy. This is a preview of how health care will be rationed when Democrats get their way.

At issue are "virtual colonoscopies," or CT scans of the abdomen. Colon cancer is the second leading cause of U.S. cancer death but one of the most preventable. Found early, the cure rate is 93%, but only 8% at later stages. Virtual colonoscopies are likely to boost screenings because they are quicker, more comfortable and significantly cheaper than the standard "optical" procedure, which involves anesthesia and threading an endoscope through the lower intestine.

Virtual colonoscopies are endorsed by the American Cancer Society and covered by a growing number of private insurers including Cigna and UnitedHealthcare. The problem for Medicare is that if cancerous lesions are found using a scan, then patients must follow up with a traditional colonoscopy anyway. Costs would be lower if everyone simply took the invasive route, where doctors can remove polyps on the spot. As Medicare noted in its ruling, "If there is a relatively high referral rate [for traditional colonoscopy], the utility of an intermediate test such as CT colonography is limited." In other words, duplication would be too pricey.

This is precisely the sort of complexity that the Democrats would prefer to ignore as they try to restructure health care. Led by budget chief Peter Orszag, the White House believes that comparative effectiveness research, which examines clinical evidence to determine what "works best," will let them cut wasteful or ineffective treatments and thus contain health spending.

The problem is that what "works best" isn't the same for everyone. While not painless or risk free, virtual colonoscopy might be better for some patients -- especially among seniors who are infirm or because the presence of other diseases puts them at risk for complications. Ideally doctors would decide with their patients. But Medicare instead made the hard-and-fast choice that it was cheaper to cut it off for all beneficiaries. If some patients are worse off, well, too bad.

Medicare is already the country's largest purchaser of health care. Private carriers generally adopt its rates and policies, and the virtual colonoscopy decision may run this technology out of the marketplace. Now multiply that by the new "public option" that Democrats favor, which would transfer millions of patients to a new insurance program managed by the federal government. Washington's utilitarian judgments about costs would reshape the practice of medicine.

Initially, the open-ended style of American care will barely be touched, if only for political self-preservation. Health planners will adjust at the margins, as with virtual colonoscopy. But scarcity forces choices. As the Medicare trustees note in their report, the tax increases necessary to fund merely the current benefit schedule for the elderly would cripple the economy. The far more expensive public option will not turn into a pumpkin when cost savings do not materialize. At that point, government will clamp down with price controls in the form of lines and rock-bottom reimbursement rates.

Mr. Orszag says that a federal health board will make these Solomonic decisions, which is only true until the lobbies get to Congress and the White House. With virtual colonoscopy, radiologists and gastroenterologists are feuding over which group should get paid for colon cancer screening. Companies like General Electric and Seimens that make CT technology are pressuring Medicare administrators too. More than 50 Congressmen are demanding that the decision be overturned.

All this is merely a preview of the life-and-death decisions that will be determined by politics once government finances substantially more health care than the 46% it already does. Anyone who buys Democratic claims about "choice" and "affordability" will be in for a very rude awakening.

The Arms-Control Dinosaurs Are Back. Why invite Russia to veto the nuclear progress we've been making on our own?

The Arms-Control Dinosaurs Are Back. By Marc A Thiessen
Why invite Russia to veto the nuclear progress we've been making on our own?
WSJ, May 19, 2009

When John Bolton served in the State Department during the Bush administration, he often walked the halls of Foggy Bottom wearing his trademark dinosaur ties -- a self-deprecating nod to those who thought his political views somewhat Jurassic. Today other dinosaurs have replaced him. The aging arms controllers who once haggled with Soviet officials are staging a comeback in the Obama administration.

This week in Moscow they'll pick up where they left off nearly two decades ago, sitting across the table from their Russian counterparts negotiating a renewal of the 1991 U.S.-Soviet Strategic Arms Reduction Treaty (Start). One of the U.S. negotiators, Assistant Secretary of State Rose Gottemoeller, refers to herself as a "Sputnik baby." She told the Washington Post after initial talks in New York earlier this month: "We've all been looking around and chuckling and saying 'We're all over 50.'"

President Barack Obama's goal of "a world without nuclear weapons" notwithstanding, the State Department is reportedly scrambling to staff its arms-control bureau because so many arms-control experts have retired and there's no one coming up in the ranks to replace them. Apparently not many young policy wonks are aware that cutting nuclear deals with Moscow is again the fast track to a high-flying diplomatic career.

The Obama revival of arms control comes at an odd moment. The past eight years have seen the fewest arms-control negotiations in a generation and some of the deepest nuclear weapons reductions in history. Thanks to the work of the Bush administration, the U.S. nuclear stockpile is now one-quarter the size it was at the end of the Cold War -- the lowest level since the Eisenhower administration. When George W. Bush took office, the U.S. had more than 6,000 operationally deployed strategic nuclear warheads. Today, that number has been reduced to less than 2,200. The U.S. had originally planned to reach this milestone on Dec. 31, 2012, but instead met its goal this February.

How did the U.S. achieve such dramatic reductions so quickly? Answer: By abandoning traditional arms control. When Mr. Bush took office, he decided not to engage in lengthy, adversarial negotiations with Russia in which both sides kept thousands of weapons they did not need as bargaining chips. He did not establish standing negotiating teams in Geneva with armies of arms-control experts doing battle over every colon and comma. If he had done so, the two sides would probably still be negotiating today.

Instead, Mr. Bush simply announced his intention to reduce the U.S.'s operationally deployed strategic nuclear warheads by some two-thirds and invited Russia to do the same. President Vladimir Putin accepted his offer. These unilateral reductions were then codified in the 2002 Moscow Treaty, a three-page pact that took just six months to negotiate. By contrast, the Start treaty signed by President George H.W. Bush and Soviet President Mikhail Gorbachev -- and now being revived by the Obama team -- is 700-pages long and took nine years to negotiate.

Even as he enacted massive reductions in nuclear weapons, George W. Bush took other actions to reduce nuclear dangers. His administration launched the Global Threat Reduction Initiative, which secured more than 600 vulnerable nuclear sites around the world and helped convert 57 nuclear reactors in 32 countries from highly-enriched uranium to low-enriched uranium, removing enough weapons-grade material from countries around the world for more than 40 nuclear bombs.

With G-8 leaders, Mr. Bush launched the Global Partnership Against the Spread of Weapons and Materials of Mass Destruction -- a $20 billion international effort to secure and dispose of nuclear and fissile materials and help former weapons scientists find new lines of work. The U.S. and Russia launched the Global Initiative to Combat Nuclear Terrorism, a coalition of 75 nations that is working to stop the illicit spread of nuclear materials. The U.S. and Russia also launched the Bratislava Initiative, which has secured nearly 150 Russian sites containing nuclear warheads and hundreds of metric tons of weapons-quality material.

Despite this record of achievement, the arms controllers see the Bush era as a dark age from which they must rescue the world. They are intent on reviving the antiquated and adversarial approach to arms reductions. As serious negotiations begin, Russia will use these negotiations on arms reductions as leverage to get the U.S. to give up its planned deployment of ballistic missile defenses in Poland and the Czech Republic. Unlike Ronald Reagan at Reykjavik, it is not clear that Mr. Obama would walk away from a deal to preserve these vital defenses.

In addition to a new Start treaty, the Obama administration also reportedly plans to press the Senate to approve the Comprehensive Test Ban Treaty (CTBT), a fatally flawed agreement that was rejected by the Senate in 1999 because it would undermine reliability of our nuclear stockpile. Instead of pressing the Senate to act on the CTBT, the administration should be calling on Congress to restore the funding it eliminated last year for the Reliable Replacement Warhead program, which would allow us to develop new warheads without the need for nuclear testing and thus ensure the reliability of America's nuclear deterrent.

Mr. Obama will visit Moscow in July where he and President Dmitry Medvedev will discuss progress on their stated goal to "move beyond Cold War mentalities and chart a fresh start in relations." Bringing back Cold War-era arms-control negotiations is a strange way to do so. In the 21st century, arms-control agreements are as antiquated as cave drawings. We no longer need pieces of parchment and armies of arms-control aficionados to achieve deep reductions in nuclear weapons. This fact is lost on the Sputnik babies now inhabiting the State Department.

Mr. Thiessen served as chief speechwriter to President George W. Bush and Secretary of Defense Donald Rumsfeld. In 2002, he traveled to Russia with Mr. Rumsfeld for the negotiations of the Moscow Treaty.

Iran's Nuclear Shopping List

Iran's Nuclear Shopping List. WSJ Editorial
Morgenthau: 'It's late in the game.'
WSJ, May 19, 2009

Back when the Bush Administration was warning about Iran's nuclear progress, or its deadly meddling in Iraq, the typical Democratic and media response was to treat the Islamic Republic as innocent until proven guilty. This month, Democrat Robert Morgenthau supplied the proof.

In testimony to the Senate Foreign Relations Committee that was largely ignored by the media, the legendary Manhattan District Attorney opened a window on how Iran is secretly obtaining the ingredients for an arsenal of mass destruction. Mr. Morgenthau, whose recent cases have exposed illicit Iranian finance and procurement networks, has discovered what he calls "Iran's shopping list for materials related to weapons of mass destruction." They add up to "literally thousands of records."

Missile accuracy appears to be a key Iranian goal. In one of Mr. Morgenthau's cases -- the prosecution of Chinese citizen Li Fang Wei and his LIMMT company for allegedly scamming Manhattan banks to slip past sanctions on Iran -- the DA uncovered a list that included 400 sophisticated gyroscopes and 600 accelerometers. These are critical for developing accurate long-range missiles. He also found that Iran was acquiring a rare metal called tantalum, "used in those roadside bombs that are being used against our troops in Iraq and Afghanistan." So much for the media notion that Iran has played no part in killing American GIs.

Mr. Morgenthau also noted that the material shipped by LIMMT "included 15,000 kilograms of a specialized aluminum alloy used almost exclusively in long-range missile production; 1,700 kilograms of graphite cylinders used for banned electrical discharge machines which are used in converting uranium; more than 30,000 kilograms of tungsten-copper plates; 200 pieces of tungsten-copper alloy hollow cylinders, all used for missiles; 19,000 kilograms of tungsten metal powder, and 24,500 kilograms of maraging steel rods . . . especially hardened steel suitable for long-range missiles."

Lest anyone think that these materials may have innocent uses, Mr. Morgenthau added that "we have consulted with top experts in the field from MIT and from private industry and from the CIA. . . . Frankly, some of the people we've consulted are shocked by the sophistication of the equipment they're buying."

Mr. Morgenthau's information is corroborated by a staff report for the Foreign Relations Committee, chaired by Democrat John Kerry, which notes that Iran is making nuclear progress on all fronts, and that it "could produce enough weapons-grade material for a bomb within six months." The committee also notes that "Iran is operating a broad network of front organizations," and that authorities suspect "some purchases for Iran's nuclear and missile programs may have come through an elaborate ruse to avoid U.S. financial sanctions on dealing with Iranian banks."

As we've reported, Lloyds bank entered into a deferred prosecution agreement in January with Mr. Morgenthau's office in which it admitted to a $300 million "stripping" scheme designed to hide the Iranian origin of banking transfers from 2001 to 2004. Several other banks are also in the crosshairs of Mr. Morgenthau and the Justice Department.

All this should put to rest any doubts about the Iranian regime's purposes and determination. As for what the U.S. should do about it, the committee report insists that "direct engagement" must be a part of American strategy, and so it seems fated to be under the Obama Administration. The least it can do is heed Mr. Morgenthau's central point about everything he's learned about Iran's nuclear progress: "It's late in the game, and we don't have a lot of time."