Saying No to Justice

Why I declined to meet with the President’s Detention Policy Task Force.

By Andrew C. McCarthy

I did something today that I’ve never done before. The Department of Justice, which I proudly served for a quarter century as an assistant U.S. attorney and a deputy U.S. marshal, asked me for help, and I declined. Actually, what I declined to do was attend a meeting. My hope is that the dissent I am registering — to the administration’s disastrous policies of releasing trained terrorists and threatening prosecution against government lawyers — will help the department and the Obama administration, even if they don’t want to hear it. At the start of his term, President Obama directed Attorney General Eric Holder to head up the President’s Detention Policy Task Force to study detention, trial, and other issues relating to alien enemy combatants — though that venerable law-of-war term has been purged in favor of “individuals captured or apprehended in connection with armed conflicts and counterterrorism operations.” The attorney general has assigned lawyers in the department’s Counterterrorism Division to organize the effort. Those lawyers invited me, among other former and current prosecutors experienced in terrorism and national-security matters, to attend a roundtable session next week, to sort through the vexing legal challenges of modern international terrorism. I’ve declined the invitation. It pained me to do it. I’ve always believed enforcing our laws and defending our nation are duties of citizenship, not ideology. My conservative political views aside, I regularly make myself available to liberal and conservative groups, to Democrats and Republicans, if they think tapping my national-security or law-enforcement experience would be beneficial.

This time, though, I had to say no. As I explain to Attorney General Holder in a letter, which was posted this morning on the website of the National Review Institute, I declined for two reasons.

First, President Obama and Attorney General Holder have created an untenable situation for lawyers asked to advise the government on policy matters.

Former Justice Department attorneys John Yoo (now a law professor at Berkeley) and Jay Bybee (now a federal appeals-court judge in California), as well as other government attorneys, were asked during the emergency conditions that followed the 9/11 attacks to advise Bush administration policymakers on U.S. interrogation law. They did that in good faith and, despite the fact that it’s now de rigueur to castigate them, quite reasonably (as I’ve argued in an online Federalist Society debate, see here). For their service to our country, they are now being tormented by the Obama administration with both a criminal investigation and an ethics inquiry by Justice’s Office of Professional Responsibility. (There have even been calls on the left for Judge Bybee’s impeachment, which — even if he had done something wrong years earlier as a Justice Department lawyer — would be absurd: The Constitution reserves judicial impeachment for misconduct committed during the judge’s tenure on the bench, and Bybee is an excellent judge.)

A little over a week ago, the Obama administration recklessly revealed publicly (i.e., to al-Qaeda) the details of enhanced interrogation tactics used by the CIA against top-tier terrorists. The decision to employ these tactics was not made by Yoo, Bybee, or other government lawyers. They did not look to press these practices on government agents. Rather, the CIA initiated the controversy by asking for clarification of its authority. President Bush and his top national-security officials, including CIA Director George Tenet, were responsible for making the policy. The attorneys merely gave their best legal advice — the policymakers didn’t have to follow it, and it was the CIA, not the lawyers, that conducted questioning and made judgments about how it was affecting the terrorists.

Yet President Obama’s antiwar base is in a froth — so much so that he has unleashed his Justice Department to criminalize political disputes after claiming for weeks that he did not want to do this. And the president is being a bully about it. He obviously doesn’t want to incur the wrath of leaking spooks, so he has said CIA agents won’t be investigated (the right result reached for self-interested reasons). He hasn’t worked up the nerve to go after his predecessor, who ordered the policy, and Tenet — a Democrat and one of Bush’s Clinton-holdovers — is another politically inconvenient target. That leaves the lawyers — relatively unknown and thus easily demonized — as the feast for the piranhas.

Any experienced prosecutor would know there is no criminal case here. And let’s assume you think the lawyers gave bad advice — as many say they do, particularly if they haven’t read the memos. Bad legal advice given in good faith is not an ethical violation. There’s not a lawyer in America who hasn’t given bad legal advice at some point — certainly not in the government. It is disgraceful to target these lawyers for this kind of persecution, to force them to retain counsel to defend their wartime service to the country, and to put them in fear of criminal, professional, and financial repercussions. It should be offensive to all people of good will, regardless of their politics or of where they come out on the explosive issue of coercive interrogation. We can arrive at a sound policy, or not, without demonizing our adversaries as crooks and cads.

But that’s not how the attorney general sees it. For all his confirmation-hearing talk about learning his lesson from the Marc Rich debacle and being strong enough to stand up to a president who tries to politicize the Justice Department, Holder took the buck that Obama decided stops at the Justice Department. The attorney general dutifully promised to “follow the evidence wherever it takes us.”

That puts every lawyer who is asked to advise the government on notice: If the Holder Justice Department decides your good-faith advice promoted what it considers illegal activity, you could face criminal prosecution or ruinous ethical charges. That turns out to be a problem for me.

The government has asked for my legal advice on detainees. And worse, I already know that Holder thinks the advice I would give counsels illegal activity. That is, I believe alien enemy combatants should be detained, until the conclusion of hostilities, at Guantanamo Bay (or someplace just like it). Yet, in a provocative speech in Germany on Wednesday, the attorney general framed that notion as a violation of “the rule of law.”
Continuing the new administration’s unbecoming propensity to vilify its predecessor, Holder told his audience, “Nothing symbolizes our [adminstration’s] new course more than our decision to close the prison at Guantanamo Bay. . . .  President Obama believes, and I strongly agree, that Guantanamo has come to represent a time and an approach that we want to put behind us: a disregard for our centuries-long respect for the rule of law.”

Was Holder just pandering, as he was when he called Americans “cowards” on the issue of race? Perhaps. From my perspective, though, I’m a lawyer who’s been asked to give advice to the government by an administration that says such advice could lead to criminal investigation and professional discipline. And although the advice I would give is firmly rooted in the laws of war, and was reaffirmed by the Supreme Court in the 2004 Hamdi decision, this administration regards such detention as running afoul of the rule of law. Thus, as I wrote to the attorney general:

Given your policy of conducting ruinous criminal and ethics investigations of lawyers over the advice they offer the government, and your specific position that the wartime detention I would endorse is tantamount to a violation of law, it makes little sense for me to attend the Task Force meeting. After all, my choice would be to remain silent or risk jeopardizing myself.

The second reason for declining the Justice Department’s request is that the exercise known as the “President’s Detention Policy Task Force” is a farce. The administration has already settled on a detainee policy: It is simply going to release trained jihadists. Holder said as much in his Germany speech. In the irrational world he inhabits, the existence of Guantanamo Bay, where dangerous terrorists cannot harm anyone, is more of a security threat than jihadists roaming free, plotting to menace and murder us. That’s why the administration just released Binyam Mohammed, who conspired with Khalid Sheikh Mohammed and “Dirty Bomber” Jose Padilla to execute post-9/11 bombings in American cities. That’s why Holder will soon announce (perhaps as early as today) that the Chinese Uighur detainees — who’ve been affiliated with a designated terrorist organization and who’ve received paramilitary training at al-Qaeda camps — will not only be set free in the United States but will, according to National Intelligence Director Dennis Blair, subsist on the support of the American taxpayer.

For all their talk about “the rule of law,” President Obama and Attorney General Holder have to know this policy is illegal. In 2005, Congress provided in the REAL ID Act that aliens who’ve been affiliated with a terrorist organization or who’ve received paramilitary training (which has been a staple of virtually every jihadist plot against the United States) are excludable from the United States. Moreover, even if the administration were not riding roughshod over federal immigration law, it is endangering the American people. The sophistry required to believe that having people who want to kill us locked up is more perilous than loosing them on civilian populations is so absurd it nearly defies description.

To satisfy his antiwar base and to put paid to commitments offered by his top campaign advisers (like Eric Holder), President Obama promised to close Guantanamo Bay within a year, despite having no plan for what to do about the terrorists there, many of whom cannot be tried under the standards of the civilian justice system. Military proceedings are anathema to the administration — many of whose lawyers either represented the Gitmo detainees or come from firms that did. (Holder’s former firm, for example, brags on its website that it represents detainees in their wartime lawsuits against the American people.) And the administration is evidently not very interested in exploring novel systems of preventive detention, such as my proposal for a “national security court,” which would require extensive legislative work. Instead, the Obama policy is simply to release our enemies — knowing many are certain to return to the jihad — if that’s what it takes to comply with the president’s promise to close Gitmo by January.

Consequently, the President’s Detention Policy Task Force is not an effort to arrive at the best counterterrorism policy. It is an effort to justify a bad policy that has already been made — to be able to tell the American people that this suicidal approach was arrived at in consultation with experienced terrorism prosecutors and national-security officials.

As I told the attorney general in my letter, “I am powerless to stop the president, as he takes these reckless steps, from touting his Detention Policy Task Force as a demonstration of his national security seriousness. But I can decline to participate in the charade.”