November 6, 2008

Remarks of Sheldon Whitehouse to the American Bar Association’s 18th Annual Review of the Field of National Security Law Conference

As Prepared for Delivery

Ladies and gentlemen, I have been lots of different kinds of lawyer in my life, but nothing quite matches standing up in court to say: “Your Honor, I represent the United States of America.”

As a United States Attorney, I saw first-hand the devotion of the men and women of the Department to their mission, and how deeply ingrained are Justice Sutherland’s words: that while a prosecutor “may strike hard blows, he is not at liberty to strike foul ones.” I experienced the esprit de corps that came with this great responsibility, a memory AUSAs and U.S. Attorneys of all denominations carry for their lifetimes.

And I felt deep frustration and dismay last year, as each day brought a new story of politics infecting our Department of Justice at its highest levels; of the Department’s protective armature of longstanding norms, policies, and procedures being disassembled; and of incompetence so stunning it made you wince.

There are object lessons here we would be wise to learn and remember. Some relate to the Department of Justice specifically – but matter even outside the Department because it should represent the zenith of government lawyering – and some lessons apply to government lawyers serving honorably anywhere. But these lessons touch every American.

American government has suffered in recent years a corruption of the administrative flesh, of its very sinews, fibers and nerves. To resurrect the spirit of integrity and duty, which must animate American government if we are to remain a light of hope and example in a shadowed world, attention must be paid to these lessons. From that perspective, let’s dive in.

I remember when I took my oath as Attorney General of little Rhode Island, how strongly I felt the responsibility and honor of that office. I think Attorney General Gonzales simply failed to respect the institution he served and its time-honored traditions and practices, and I think this explains much of what befell the Department of Justice.

What do I mean by “time-honored traditions and practices”?

I mean the unwritten rule that U.S. Attorneys were expected to be homegrown – so that they knew and understood and were accountable to their Districts, not just envoys of a distant Department, with their allegiance all to its faraway command.

I mean the statutory requirement that U.S. Attorneys must be put up for Senate confirmation, to trim away ideological extremes, and raise the bar of the candidates’ credentials.

I mean the restriction of communications between the White House and the Department on case-specific matters, to erect a firewall between this great institution and its likeliest vector of improper influence.

I mean the notion that career attorneys are hired, fired, and work free from partisan influence; and of course that U.S. Attorneys are free to do their important work above politics.

As the recent Inspector General report states:

Once U.S. Attorneys assume office, they are obligated to put political considerations aside when making prosecutive judgments on individual cases. Inevitably, their decisions may displease the political officials who initially supported them. If a U.S. Attorney must maintain the confidence of home-state political officials to avoid removal, regardless of the merits of the U.S. Attorney’s prosecutorial decisions, respect for the Department of Justice’s independence and integrity will be severely damaged and every U.S. Attorney’s prosecutorial decisions will be suspect.

That is a window into the situation that Attorney General Mukasey inherited. How has the recovery proceeded?

First, Attorney General Mukasey has overhauled almost the entire senior leadership at the Department. He replaced a disgraced group with people such as Deputy Attorney General Mark Filip, who is well-qualified and, just as important, seems to feel in his heart and in his gut the vital governmental role of this majestic institution.

Second, I give Attorney General Mukasey great credit for sharply restricting the White House and Department officials who can discuss ongoing cases and investigations. When I was a U.S. Attorney, it was only four White House officials and three Department officials. This was an important firewall, protecting the Department from interference, well-intentioned or ill-intentioned, from the likeliest source of such interference: the White House itself.

The Bush Administration broke down this firewall to permit 417 White House officials, including Karl Rove and other political advisers, to have case-specific conversations with up to 42 Department officials, and then broke it down further so that it included Vice President Cheney’s Counsel David Addington. Attorney General Mukasey, true to his word at his confirmation hearing, rebuilt that firewall – to permit only the Attorney General, Deputy Attorney General, White House Counsel and Deputy White House Counsel to have initial contacts regarding criminal cases. This is a healthy and wise protection.

Finally, it appears that Attorney General Mukasey has taken grossly partisan considerations out of hiring of career staff, appointment of immigration judges, and selection for the Honors Program.

But all is not well, particularly not at the Office of Legal Counsel. As you know, OLC’s authority to determine the legality of Executive Branch actions gives it tremendous power. Its decisions are viewed to have the force of law; yet the office is subject to little (if any) oversight; there is limited transparency, particularly into its classified, secret opinions; and it is insulated from the healthy and illuminating play of separated powers of government.

As former OLC head Jack Goldsmith noted in his book The Terror Presidency, generations of OLC attorneys understood that danger and, in his words, “developed powerful cultural norms about the importance of providing the President with detached, apolitical legal advice, as if OLC were an independent court inside the executive branch.”

Thanks in part to Goldsmith but also from the OLC’s own deeds, we now know the degree to which those norms were trampled. I’m going to take a minute on this, because you’re lawyers and you should hear the case. One example is the infamous 2002 OLC torture memo, which defines torture thus:

Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.

As lawyers, let’s drill into this for a moment: Where does this definition come from? What was OLC’s source for the “organ failure, impairment of bodily function, or even death” language that they deemed to control our covert interrogators? You will find its source at 42 U.S.C. § 1395w-22. That, my friends, is a Medicare reimbursement statute.

OLC then used this definition to approve a coercive interrogation technique now regrettably familiar to us all, “water-boarding.” Water-boarding had a long and sordid history, never mentioned in OLC’s opinion; it was used by the Spanish Inquisition, by the Khmer Rouge in Cambodia, by the French in Algeria, by the Japanese in World War II, and by military dictators of Latin America. Senator John McCain, held captive for more than five years by the North Vietnamese, said of water-boarding: “It is not a complicated procedure. It is torture.”

The United States government long agreed. Americans, on behalf of military tribunals, initiated war crimes prosecutions against Japanese soldiers who water-boarded American aviators in World War II, charging them with torture.

The United States government itself brought a civil rights prosecution against a Texas sheriff who water-boarded prisoners. The government’s indictment in United States v. Lee charged that the defendants conspired to “subject prisoners to a suffocating ‘water torture’ ordeal in order to coerce confessions.” The sheriff and his deputies were convicted by a federal jury and the United States Court of Appeals for the Fifth Circuit affirmed. At sentencing, the presiding judge admonished the former sheriff that “[t]he operation down there would embarrass the dictator of a primitive country.”

The Fifth Circuit decision is reported at 744 F.2d 1124. A Westlaw or Lexis query for the term “water torture” brings it up. The technique is called “torture” no less than 12 times in the Circuit Court’s opinion. The Department of Justice itself brought the charges. The prosecuting Assistant U.S. Attorney is still in the Department. None of this, not the Lee decision, not the military tribunal prosecutions, not court-martial of U.S. soldiers in the Philippines, is mentioned in OLC’s opinion.

How is it that the Office of Legal Counsel, the elite legal conscience of the Department of Justice, completely missed all this? Particularly Lee: they found a faraway Medicare reimbursement statute, and missed their own prosecution?

The torture memo follows a disquieting pattern of secret OLC opinions. As a member of the Senate Intelligence Committee, I reviewed secret OLC opinions related to the warrantless wiretapping program. Three legal theories contained in those memos so surprised me that I fought to have them declassified and brought to light. Those theories are, as declassified by the Director of National Intelligence:

  1. An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it;
  2. The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II; and
  3. The Department of Justice is bound by the President’s legal determinations.

Think of it: the first proposition — that executive compliance with executive orders is optional — turns the Federal Register into a screen of falsehood, behind which lawless programs can operate in secret, notwithstanding Supreme Court case law since 1871 that a valid executive order has the force and effect of law.

The second proposition — that Article II gives the President the authority to define his Article II powers – does not reconcile easily with the famous language of Marbury v. Madison, that “it is emphatically the province and duty of the Judicial Department to say what the law is.”

And that third proposition? — that the President tells the Department of Justice what the law is (consistent with President Bush’s own statement, recently reported in the Washington Post, that “I decide what the law is for the Executive branch”) – compare that to Richard Nixon’s infamous assertion to David Frost: “If the President does it, that means it is not illegal.” I guess now if the President says it…

Let me illustrate one real-world experience: the FISA Act had no statutory limitation – no law of Congress and consequently no oversight by the courts – on the government wiretapping Americans traveling abroad. If you were an American abroad, no statute prevented the government from wiretapping you, whenever it wanted, for whatever purpose. The only limitation was Executive Order 12333, which requires the Attorney General to determine that an American target is acting as an agent of a foreign power.

When we pushed to require court approval before Americans could be wiretapped overseas, the Bush Administration pushed back, citing this Executive Order. But, under that secret OLC Theory of Executive Orders, a soldier serving in Iraq or Afghanistan, or an American visiting family abroad, or a business traveler overseas, could be wiretapped without oversight or limitation, notwithstanding the Executive Order purporting to state the contrary.

So the FISA reform we passed now requires a court to find probable cause before any American overseas may be targeted for intelligence surveillance.

How did OLC get to this point? Again, I quote Jack Goldsmith: Gonzales and Cheney’s counsel Addington told him that “OLC’s legal reasoning was irrelevant to the authority of an OLC opinion. All that mattered, they believed, was OLC’s bottom line approval.”

The Office of Professional Responsibility has now opened an investigation into OLC’s legal work, a sad thing to have to report. OPR doesn’t customarily make its findings public, but I hope that here OPR produces a public report that takes a cold, hard look into an office that became a little hothouse of legal ideology.

Unfortunately, Attorney General Mukasey has taken little visible interest in the problems at OLC. He appears to have even tolerated OLC, at the direction of the White House, refusing to cooperate with the recent Inspector General/OPR investigation into the U.S. Attorney firings. In the history of the United States Department of Justice, I don’t believe there has ever before been a Department investigation in which a division of the Department refused to cooperate.

The White House, of course, also refused to fully cooperate with the OIG/OPR investigation. On the Senate Judiciary Committee, we’d been stonewalled by the White House too, behind theories of executive privilege that struck me as extreme. But executive privilege at any extreme doesn’t protect the White House from executive branch investigation. So that fig leaf is now off. This is just an old-fashioned stonewall, plain and simple.

It is disappointing that Attorney General Mukasey tolerated it. The face-off between the White House and the Ashcroft DOJ over the warrantless wiretapping program has been widely reported, and we all know the creepy events at Ashcroft’s hospital bedside. Then, Attorney General Ashcroft and Deputy Attorney General Comey and FBI Director Mueller held firm, and the White House blinked. In this case, it appears that the White House said no, and the Attorney General blinked.

Perhaps the special prosecutor will be the long way around to the same point. But many questions remain unanswered about her authority, and skeptics could consider her appointment just a device to shovel the politically damaging parts of this investigation behind the secrecy of grand jury rule 6(e), until after the election. If so, mission accomplished.

The appointment of the special prosecutor obscures the central and salient point, which is this: one trip by the Attorney General up Pennsylvania Avenue and one tough conversation with the President, and the authority of the Department of Justice to investigate wherever relevant facts may lead – even into the White House – could already have been vindicated.

Let me conclude with the three lessons I extract from DOJ’s saga. First, we are a country where process matters. As lawyers, we understand this acutely. From the grand architecture of American divided government, down through the vast matrix of legislative statutory creation, right down to the “time-honored traditions and practices” of our federal agencies, process matters. When those time-honored traditions and practices begin to be disassembled within administrative agencies, it should be cause for at least concern and scrutiny, if not downright alarm. Whether it is the cooked regulatory standards at EPA, the degraded analysis of our intelligence agencies, or the integrity collapse at DOJ, the substantive misdeeds we’ve seen were heralded and accompanied by telltale interference in established process.

Second is that duty matters. For lawyers particularly, that duty is not just to those who appointed them, but to the law, of which we all are servants, and to the traditions of scholarship and analysis that sustain the law. That duty, simply stated, is to tell masters what they need to know, not just what they want to hear. When a government lawyer is willing to take a dive to get his master’s desired result, something very, very bad has gone wrong.

Every public official has a duty to his appointing authority, but also a duty to the people he serves, and a duty to the office he holds. As a lawyer, that public official has a fourth duty – to the law his oath and obligation it is to uphold. These duties usually harmonize. When they don’t, you have difficult choices to make.

How these difficult choices are made determines the integrity and direction of public discourse in our democracy. One of the central failings of the so-called “unitary executive” theory is that it tends to exalt that first duty, to the appointing authority, over all the others. A cynic could argue that all of its theorizing masks nothing more than that very purpose.

The third lesson is that, within that environment of process and duty, individuals still can and do make a difference by their decisions. Attorney General Mukasey could have made a lasting difference. He stood on what Winston Churchill called one of those fine agate points on which destiny turns, and at that defining moment, he caved. Very differently, Acting Attorney General Comey stood firm and left a lasting legacy – as well as one hell of a story. Decisions matter.

America now looks forward, with profound relief and yearning optimism, to a new administration and its promise of a new direction. Vital to the success of that new direction will be, not just the policy changes that come, important as those will be, but also our answer – particularly as government lawyers – to these three lessons: a renewed respect for the role of process in assuring integrity and transparency in American government, a reawakening to those higher duties of public servants that transcend mere obedience, and an animation of the courageous spirit of public service that defines America at those fine agate points when a man and a moment can shape the future.

This change, more than anything else, is ultimately the change we need to restore the health of our democracy.