By: Jason Leopold, 26 February 2010:

The National Archives and a watchdog group sent letters to the Justice Department Thursday demanding an investigation into the destruction of John Yoo’s emails in the summer of 2002 when he and other government attorneys prepared and finalized legal memoranda for the CIA that redefined torture and authorized interrogators to brutalize “war on terror” detainees.

The Federal Records Act (FRA) requires the preservation of government documents. Records cannot be destroyed unless approved by the National Archives and Records Administration (NARA). According to the Justice Department’s website, emails fall under FRA if it pertains to government business.

The Federal Records Act (FRA) requires the preservation of government documents. Records cannot be destroyed unless approved by the National Archives and Records Administration (NARA). According to the DOJ’sweb site, emails fall under FRA if they pertain to government business.

Last week, the DOJ’s Office of Professional Responsibility (OPR) released a long-awaited report into the legal work former Office of Legal Counsel (OLC) attorneys Yoo and Jay Bybee did for the Bush administration on torture. Yoo currently works as a law professor at UC Berkeley and Bybee received a lifetime appointment as a federal judge on the Ninth Circuit Court of Appeals.

Legal opinions written by Yoo in August 2002 and signed by Bybee cleared the way for the Bush administration to subject detainees to the near drowning of waterboarding and other brutal treatment at the hands of CIA interrogators.

Waterboarding and some of the other interrogation techniques sanctioned by the Bush administration, such as slamming detainees against walls and depriving them of sleep, have long been considered acts of torture and have been treated and prosecuted as war crimes. However, Yoo – working closely with Bush administration officials – claimed that the techniques did not violate US criminal laws and international treaties forbidding torture.

Further, Yoo asserted that Bush’s presidential powers were virtually unlimited in wartime, even a conflict as vaguely defined as the war on terror.

But Yoo, the report concluded, was found to have “committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.”

Bybee was found to have “committed professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.” OPR investigators deemed this to be a violation of “professional standards” and recommended that Yoo and Bybee be referred to state bar associations where they could have had their law licenses revoked. Career prosecutor David Margolis, however, downgraded the criticism to “poor judgment,” which means the DOJ now won’t make the referral.

The voluminous report noted, however, that while OPR investigtors were initially provided us with a relatively small number of emails, files, and draft documents,” it became “apparent, during the course of our review, that relevant documents were missing…”

OPR “requested and were given direct access to the email and computer records of REDACTED, Yoo, [Deputy Assistant Attorney General Patrick] Philbin, Bybee, and [fomer OLC head Jack] Goldsmith” during the course of the investigation into the creation of the torture memos. But OPR investigators said their probe was “hampered by the loss of Yoo’s and Philbin’s email records.”

OPR investigators said they were told that most of “Yoo’s email records” as well as “Philbin’s email records from July 2002 through August 5, 2002 – the time period in which the Bybee Memo was completed and the Classified Bybee Memo … was created” were deleted and “reportedly” not recoverable. The deleted emails also included other relevant documents the OPR needed to assist its investigation, according to the report.

It is unknown whether any steps were ever taken by DOJ to retrieve the emails before deeming them “unrecoverable.” Curiously, the report says that although OPR investigators “were initially advised that Goldsmith’s records had been deleted, we were later told that they had been recovered and we were given access to them.” The report does not provide further explanation.

In a letter sent Thursday to Jeanette Plante at the DOJ’s Office of Records and Management Policy, Paul Wester, director of the Archives’ modern record program, said, in accordance with federal rules governing the preservation of records, if the “DOJ determines that an unauthorized destruction has occurred, then DOJ needs to submit a report to” NARA.

Wester requested a response within 30 days. A DOJ spokesperson was unavailable for comment.

The destruction of Yoo’s and Philbin’s emails also caught the attention of watchdog group Citizens for Responsibility and Ethics in Washington (CREW), which had waged a years-long legal battle with the Bush administration over its destruction of tens of millions of emails and failed efforts to take steps to recover the documents and  preserve others.

Melanie Sloan, CREW’s executive director, said Thursday, “given the disappearance of millions of Bush White House emails, we shouldn’t be surprised that crucial emails also disappeared from the Bush Justice Department.”

“The question now is what is the Attorney General going to do about it?” she said.

Sloan also sent a letter sent to Attorney General Eric Holder Thursday calling for a criminal investigation into the matter, a request that will likely go unfulfilled given the Justice Department’s and the Obama administration’s unwillingness to further delve into the previous administration’s alleged crimes.

She said such an inquiry is warranted, however, and compared the destruction of emails with the CIA’s destruction of torture tapes, which led to a criminal investigation and the appointment of a special prosecutor by former Attorney General Michael Mukasey. That probe is ongoing.

“The destruction of emails from high-ranking officials such as Messrs. Yoo and Philbin related to a subject of critical important to the Department of Justice and the nation as a whole clearly violates FRA,” Sloan’s letter to Holder said.

Indeed, the DOJ’s web site said emails are federal records if it:

1. Documents agreements reached in meetings, telephone conversations, or other E-mail exchanges on substantive matters relating to business processes or activities
2. Provides comments on or objections to the language on drafts of policy statements or action plans
3. Supplements information in official files and/or adds to a complete understanding of office operations and responsibilities

The DOJ rules for preserving records also said ”the unlawful removal or destruction of federal records” can result in “criminal or civil penalties, fines and/or imprisonment.”

Sloan, in her letter to Holder, said, “the apparent failure of the Department of Justice to take any action in the face of knowledge that crucial records had been destroyed reflects a patent disregard of mandatory federal record keeping laws … Even if Mr. Yoo and Mr. Philbin did not violate their professional obligations by writing the torture memos, they – or others seeking to hide the truth – may have broken the law by deleting their emails.”

Last December, CREW and the historical group the National Security Archive announced that they entered into a settlement with the Obama administration over the loss of Bush administration emails.

Under the terms of the agreement, 22 million previously “missing” emails covering 94 days will be restored. That includes emails from the Office of the Vice President that were previously lost and unrecoverable and were subpoenaed by Patrick Fitzgerald, the special prosecutor appointed to probe the unauthorized leak of covert CIA operative Valerie Plame Wilson. This time frame also coincided with litigation surrounding the release of documents related to former Vice President Dick Cheney’s Energy Task Force meetings.

The emails will be sent to NARA. But whether they contain answers to lingering questions about the CIA leak or Cheney’s energy task force meetings will not be known for years, as the documents will not be immediately available for public view.

Congressional Hearing

The destruction of Yoo’s and Philbin’s email was one of the first issues raised Friday during a Senate Judiciary Committee hearing, where Acting Deputy Attorney General Gary Grindler is currently testifying about the OPR report.

“Have [the emails] disappeared? If they have, and if they have been destroyed,  either the Yoo emails, the Philbin emails, will the [Justice Department] make ultimate determination whether the destruction was criminal, in violation of the criminal statutes, which seem fairly clear?” Judiciary Committee Chairman Patrick Leahy (D-Vermont) asked Grindler.

Grindler testified that he still needs to gather information from the “information technology experts, including all of the questions of what occurred, what the policies are, and what the archive system is. And at that point I’ll be in a position to evaluate whether anything additional needs to be done.”

Grindler said the report does not “suggest there was anything nefarious” about the fact that Yoo and Philbin’s emails were not turned over to OPR investigatiors and he noted that the report “does include a review of some of Mr. Yoo’s emails.”

But Leahy said the episode was cause for concern given that other Bush administration officials were found to have destroyed emails in violation of the Presidential Records Act during time frames that coincided with the lead up to the invasion of Iraq, the leak of Plame’s covert status and other scandals that engulfed the Bush White House.

“All I’m saying is that the report doesn’t have a complete lack of his e-mails,” Grindler said. But as soon as I learn the facts regarding this, I will provide appropriate information back to this committee…If they are retrievable, I will direct [technical staff] to retrieve them.”

After the hearing, CREW filed a Freedom of Information Act request with the Justice Department “seeking documents that would shed light on the destruction” of Yoo’s and Philbin’s emails.

Specifically, CREW wants “copies of record keeping guidance issued to staff of the Office of Legal Counsel (OLC) from January 2000 to the present concerning how electronic records, including email, are to be treated for purposes of federal record keeping laws.”

CREW “also seeks records indicating, reflecting, or commenting on any problems with the storage or retention of emails of OLC staff, including but not limited to” Yoo and Philbin, “from January 2000 to July 2009.”

In a blog post published last Sunday, Marcy Wheeler, who has spent the past week painstakingly dissecting the OPR report, wrote that emails OPR did obtain “provide a key piece of evidence that the White House was responsible for the way in which the Bybee One memo served as a blank check, as well as the pressure the White House put on the lawyers as they were drafting the memos.”

“The emails put the White House squarely in the drafting process” of the torture memos, Wheeler wrote on her blog emptywheel. “But that’s all, with most emails from John Yoo and Patrick Philbin still disappeared. It sort of makes you all the more curious about what was in the Yoo and Philbin emails that got deleted, huh?”

Read Leopold’s report @ truthout –>  National Archives, Watchdog Demand DOJ Probe Destruction if John Yoo’s Emails ~ Digg it HERE

Great satire from the FOD team and Jordan Peele in response to the U.S. Supreme Court decision on Citizens United v. FEC, declaring corporations to posses free speech rights, guaranteed under the 1st Amendment as if they were individuals.

Satire  just makes the impact of it more digestible…  Enjoy!

As you may have seen reported, in a perfect exclamation point to the obstruction we’ve seen all year, when the Senate adjourned last week, the Republicans objected to what is ordinarily a routine request to waive Senate rules and permit pending nominations to remain in the Senate confirmation pipeline. Without what’s called “unanimous consent,” under Senate rules, pending nominations must be returned to the President, who then has to re-nominate in the next session. In what has become a far too typical exercise by the “Just Say No” party, Republicans objected to three DOJ nominees who have been on the Senate’s calendar awaiting consideration for months: Dawn Johnsen, for the Office of Legal Counsel; Chris Schroeder for the Office of Legal Policy; and Mary Smith, for the Tax Division. They also objected to two pending federal District Court nominees (Edward Chen, for a seat on the Northern District of California and Louis B. Butler for a seat on the Western District of Wisconsin) and to Craig Becker for reappointment as a member of the National Labor Relations Board…

Follow the link below to read more:

via Dawn Johnsen and the GOP Obstruction Game | People For the American Way Blog.

Related on PiP:

Tell the Senate, GOP – Stop Stalling on Dawn Johnsen OLC Confirmation

Cross posted at Care2.com’s Political Causes Blog

Dawn Johnsen, Barack Obama’s nominee to head his administration’s Office of Legal Counsel (OLC), is potentially the most qualified candidate ever selected for the position.  Nominated February 11 and approved by the Senate Judiciary Committee March 19, the Indiana University law professor has yet to be considered by the full Senate.  What’s the hold up, you may ask?  It appears that Johnsen is but another among many who has fallen victim to Republican obstructionism and the minority party’s ongoing misuse of the filibuster.

The Republican filibuster threat is only the most immediate cause for delay; forcing Senate Majority Leader, Harry Reid (D-NV) to scramble for the 60 votes necessary for cloture, followed by an up or down vote which would undoubtedly result in Johnsen’s confirmation.  The underlying causes behind GOP opposition to Johnsen stem from two ideological issues; one of which has been blown out of proportion by right-wing activists.  The other, more significant reason for fighting Obama’s OLC nominee is grounded in GOP fear that she, unlike her Bush administration OLC predecessors, may actually follow the law.

Right-wing activist opposition to Johnsen pertains to her past work for NARAL, a pro-choice advocacy organization.  More specifically, their objection pertains to a 1989 brief in which Johnsen’s organization — along with 76 others — argued against states having the right to prohibit abortions at public health institutions.

Johnsen’s critics have zeroed in on two sentences within a footnote, which they employ claiming the OLC nominee equated motherhood with “involuntary servitude.”  It’s an assertion which Politifact declared, March 24, to be “false.”

Of course, right-wing pundits further afield have taken Johnsen’s words and maliciously converted them, as AmericanConservative.org did September 19, placing the Obama nominee as number 41 among 650 unpalatable administration officials as, “Dawn ‘Compared Pregnancy with Slavery’ Johnsen.”  No matter how it’s stated, however, Johnsen’s pro-choice stance is and has always been remarkably mainstream.

“The real reason” for the GOP stance in opposition to Dawn Johnsen was imparted by Scott Horton, March 26, at The Daily Beast:

…Johnsen is committed to overturning the Bush administration’s policies on torture and warrantless surveillance, which would clip the wings of the imperial presidency. Even more menacingly (from their perspective), she is committed to shining a light on some of the darkest skeletons of the Bush years.

If this is correct, then Horton’s assessment lends credence to that of Glenn Greenwald, whose aptly titled post, “Dawn Johnsen’s belief in the rule of law disqualifies her from Senate consideration,” was published May 13 at Salon.com. Within his post, Greenwald emphasized the fact that the Senate’s scrutiny of Johnsen was tragically absent in its confirmation of some previous, ultimately dubious, past nominees:

The Senate that is refusing to confirm Dawn Johnsen is the same Senate that confirmed Gen. Michael Hayden as CIA Director — with overwhelming Democratic support — even after it was revealed that he oversaw Bush’s illegal NSA spying program.  It’s the same Senate that confirmed Alberto Gonzales as Attorney General — with substantial Democratic support — even once everyone knew that he had played a key role in Bush’s torture program.  It’s the same Senate that — thanks to Democrats Dianne Feinstein and Chuck Schumer — confirmed Michael Mukasey as Attorney General even after he refused to say whether waterboarding was torture and endorsed some of the most extremist presidential powers ever asserted in the U.S.

In other words, their covering their collective butts, and their doing so at the expense of a nation in desperate need of objective legal guidance.

Fortunately, there are those willing to tell their senators to quit stalling.  A good example of this was a September 22 letter from the Leadership Conference on Civil Rights, written behalf of several organizations, directing Senate Minority Leader Mitch McConnell (R-KY) to drop the stall tactics on Obama nominations.

The LCCR letter refers to Johnsen, specifically:

…Professor Johnsen has already served with distinction in the OLC, and is undoubtedly well-qualified for the position. Her nomination was approved by the Senate Judiciary Committee in March.  The OLC plays a highly important role within the Administration, and the failure to confirm the President’s nominee to lead the office prevents the OLC from providing crucial legal advice on a wide range of issues currently confronting our nation.

I’ll include some additional links below, but if you agree with the sentiment of the above letter, contact your senators and tell them so.  Additionally, consider signing THIS PETITION from NARAL-Pro-Choice America, calling on GOP senators to refrain from filibustering on the basis of any candidate’s pro-choice disposition.

See Also:

“A Legal Advisor Worthy of the Job,” New York Times Editorial Board, 26 March 2009.

Greg Sargent, “Key Dem Senator Likely to Vote Against Top Obama Legal Nominee,” ThePlumLine, 24 April 2009.

Scott Horton, “Are Republicans Blackmailing Obama?” TheDailyBeast, 5 April 2009.

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I wrote the below post, firm in my belief that Republicans couldn’t possibly maintain their opposition to Obama’s first Supreme Court nominee on the basis of the candidates ability to empathize.  It was written before the nomination of Sonia Sotomayor, and, as was evidenced by her confirmation hearings, I was clearly wrong.

Republicans on the Senate Judiciary Committee, unable to attack Sotomayor on the basis of her remarkable record, focused almost entirely on the “Wise Latina” comment, and really exposed themselves as being uncomfortable with a non-Caucasian on the SCOTUS.  During the hearings, it appeared that their strategy entailed repeated — and quite unsuccessful — attempts at soliciting an outburst from Sotomayor:

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Cross-posted @ Care2.com – From Aaron D. Pendell – 6 May 2009:

When politicians speak in code, parsing statements for phrases or words which carry negative connotations, they do our nation a profound disservice.  Fortunately for Americans, we host some particularly talented satirists who have taken it upon themselves to, justifiably, mock this manipulative practice.  Since Supreme Court Justice, David Souter, announced his intention to retire after the present term, providing  Barack Obama the opportunity to appoint someone new, our satirists — namely, Jon Stewart and Stephen Colbert — have already enjoyed the chance to impart the inherent irony of the Republican opposition’s newest code word:  empathy.

It’s not much of a surprise that Republicans would find something to complain about regarding the anticipated Supreme Court vacancy.  Political conservatives have been critical of the President’s every action, so why should this be any different?  But, empathy?  Their opposition to a character trait of a Justice yet to be named, took shape over the weekend, and are discussed briefly at the beginning of this clip from Countdown with Keith Olbermann:

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more about “Republicans Reject Obama Desire for E…“, posted with vodpod

As noted in the Countdown clip, empathy is code for judicial activism, which is code for pro-choice for Republicans.  Jon Stewart’s and Stephen Colbert’s treatments of the Souter retirement, aside from being funnier than Olbermann’s, go beyond the bickering of conservative politicians and reveal the mainstream media’s penchant for stirring up controversy.  David Greggory, in particular, appeared adamant about drawing a reaction from Sen. Arlen Specter, fresh off his defection from the GOP, focusing on the word “empathy” as if a coded meaning was implied. (Really, David, what’s happened to you?)

Be sure to tell me what you think in the comments section below.  First, however, read Obama’s stated desires for his first Supreme Court appointment:

Now, the process of selecting someone to replace Justice Souter is among my most serious responsibilities as President.  So I will seek somebody with a sharp and independent mind and a record of excellence and integrity.  I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book.  It is also about how our laws affect the daily realities of people’s lives — whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

I view that quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role.  I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time.

Does that sound at all unreasonable to you?

Also, consider what has happened when empathy is lacking in a Supreme Court ruling as it was in the case of Lilly Ledbetter.  The Court ruled against Ledbetter, 5-4, despite overwhelming evidence of pay-based gender inequality based upon a strict, or formal, interpretation of the law.  Author of the Court’s dissent, Justice Ruth Bader Ginsburg expressed disappointment in the majority’s lack of empathy in the case, “In our view, the court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination …”  Fortunately, this wrong was corrected last January when Barack Obama signed the Lilly Ledbetter Equal Pay Act into law.  Justice achieved, but two years late.

Finally, consider this:  What do conservatives want in an appointee, if not empathy?  Perhaps they desire a narcissist, someone incapable of seeing or appreciating another point of view.  If they are hoping Obama will appoint someone likely to overturn Roe v. Wade, I would suggest that they shouldn’t hold their breath.  Besides, we already have at least two narcissists on the court, and that’s more than enough.

Personally, I feel that Republicans are reading way too much into the attributes Obama desires in whomever he decides to select.  They’ve chosen “empathy” as a buzzword to stir up their dwindling base in an effort to sway the President’s choice.  Both, conservatives and the mainstream media need to drop the code, as our invaluable satirists have hilariously suggested. Instead, they should consider what empathy really means:

empathy:  Noun – the ability to sense and understand someone else’s feelings as if they were one’s own.

Should they do that, they’ll likely arrive at the conclusion that I have:  Empathy is not only desirable in a Supreme Court Justice, but it should be a prerequisite for consideration.

From CommonDreams.org, 7 May 2009 post by, Jermy Scahill:

…First, I would recommend that anyone who thinks it is a “stretch” to prosecute lawyers who provided legal justifications for torture to read the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was signed by President Ronald Reagan. Specifically, read these portions:

Article 21. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture. 3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

[...]

Article 4

1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

[...]

Article 7

1. The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

The US is legally bound to this convention and I would argue that the attempted legalizing and authorizing of torture, such as was done by Bybee, Yoo and Bradbury is exactly what this treaty addresses and bans…

read more | digg story

Of course, he’s referring to Iraq in 2003, but it’s still wicked ironic.

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