A DOJ Attorney Reacts to Obama’s Speech

President Obama spoke today about new directions in fighting terrorism. He rejected Bush administration policies and reiterated his plans to close the Guantánamo Bay detention center. He vowed to prosecute detainees in federal courts and restated his intention to transfer some detainees to secure prisons within U.S. borders. He also nuanced the hell out of what he hopes to see happen in the criminal justice realms regarding our very own war criminals, George Bush, Dick Cheney, and their web of co-conspirators.

Lars Thorwald, an attorney with the DOJ, gave me permission to publish his impression of what he heard this morning (which he originally posted at Daily Kos), with the following disclaimer:

My views are not the views of the Department.  I write merely as a private citizen who works as a trial attorney with the Department.  I have  only public knowledge about the OPR investigation, and this diary should not be construed as revelation of confidential information, because there ain’t none there.  That is all, carry on.

And now, a legal analysis of Obama’s War Crimes speech:

A Justice Dept. Attorney’s Take on Obama’s Speech

As a Justice Department attorney, I would like to comment on Obama’s speech with regard to the issue of prosecutions over torture and the establishment of a Truth Commission, issues that have been the subject of much debate and discussion here.  I know that there has been a fair amount of consternation based on the premise that the President has all but ruled out investigations or examinations into possible violations of the law concerning torture.  Jesselyn Radack has presented one skeptical view, and others have agreed.  Such skepticism is fueled, I think, by the President’s few statements about this issue.

This was an opportunity for the President to address the issue of torture prosecutions and truth commissions more clearly.  Indeed, I suspect that the expressed dissatisfaction from some progressives and discussions on sites like DailyKos raised the issue to a level where it had to be addressed today.      

I listened to the speech live, and I had my ear tuned to the particular issue of whether President Obama would embrace the concepts of “moving forward” and “focusing on the future” as springboards from which he could declare that the Government will not seek to prosecute violations of the law by the previous Administration.

He certainly could have made such a forceful declaration. This was without question in my mind one of the most powerful speeches Obama has made, not only on National Security, but on any matter since becoming President. I think it was so powerful because it laid out a clear outline of principles for how we will proceed. Shorter Obama: This is the framework, this is how what I have done fits into this framework, and this–this–is how we are going to proceed.

And it was because of his confidence that this framework was right in the context of our American values that he could lay down some brickbats on both sides.

Which he clearly did.

I heard a level of determination in his voice that I think some could reasonably interpret as being tinged with a bit of pique over the political silliness of the last few weeks.  

Of course, the President used carefully weighed language, but I think his message was clear on those matters in which he was determined to set forth policy.  True to Obama: steel determination wrapped in a velvet glove.  

Where he wanted to be, the President was certain and clear and unwavering.  For instance, he forcefully declared that we will close the prison at Guantanamo–delivering that message without hesitation or reservation.

The message between the lines was, hey, you scairdy-cat and illogical Congress critters can sort of suck it if you think otherwise.  Some of these detainees are going to SuperMax prisons.  You’d best learn to deal with it.  So he took some in his own party to task in that measured, reasoned way that is becoming Obama’s hallmark.

But here’s the point: although Obama’s speech was powerful enough that he could have declared that there will be no further investigation or examination of the legality or illegality of the use of torture, and even though he did declare set positions on several key issues,  I did not hear such foreclosure with regard to possible prosecutions.

Key passage:

I know that these debates lead directly to a call for a fuller accounting, perhaps through an Independent Commission.

  I have opposed the creation of such a Commission because I believe that our existing democratic institutions are strong enough to deliver accountability. The Congress can review abuses of our values, and there are ongoing inquiries by the Congress into matters like enhanced interrogation techniques. The Department of Justice and our courts can work through and punish any violations of our laws.

That passage packs a significant amount of punch. A significant amount.  

That statement, that language quoted above, was reviewed and approved by more than Obama and Rahm and Jon Favreau.  You can rest assured that the language of that speech was vetted within the White House and by the Attorney General, by State and DOD, CIA and NSA.  Presidents do not give a speech of such importance without serious review of what will be said.  Okay, maybe the last one didn’t.  But I assure you this one does.

So it has meaning, and, I would contend, real meaning.    

Some will interpret this passage as an abandonment of a Truth Commission (which the President never wanted), and thus an abandonment of the idea at getting at the truth, and grow discouraged.  

I think the President rejected a Truth Commission for two fundamental reasons: he rejected it as a matter of process because he believes it can be addressed elsewhere in government; and he rejected it because the idea of establishing a Truth Commission in such a charged atmosphere would be tantamount to–if I may mix metaphors for a moment–ringing the dinner bell on a three-ring circus in this town at a time where the oxygen required to keep messaging, and thus policy, alive and well would be sucked up.

Now, I know some will say, yes, but maybe he wants to rule out a truth commission because he can’t effectively kill a Truth Commission, but he can tamp down prosecution if it is led by a department of the executive branch.

I think that is a cynical view.

I think the President respects, and wants to restore, the Department of Justice to its rightful place: as representatives of the American people in the cause of justice in defense of the Constitution.  And not, as it has been in large measure for the last 8 years, a White House tool for  implementing ideological policy goals, law be damned; and, perhaps more damaging, as a shop to help cover, excuse me, a lot of ass.

Those days are gone. I can see it from here, where I sit, on the inside.

So, for President Obama to make that statement–“The Department of Justice and our courts can work through and punish any violations of our laws”–he meant it.  

He is not shutting the door on prosecutions.  He could have shut the door today, but he did not.

He’s going to let this Department–a group of attorneys who cherish their independence and role as protectors of the Constitution and the laws of this nation–look into the matter.  

We know that the Department is already looking into the actions of its own, former attorneys (And here I must state the opinion that I think that for as much as Jesselyn Radack of the Government Accountability Projectis to be applauded, her views regarding the effectiveness, aims, and intent of OPR should be taken with a small grain of salt.  Because she was the subject of an Office of Professional Responsibility investigation by the previous Administration, she may have feelings about the Office that are colored by her own bad experiences with the Office in its previous incarnation, and as it does not exist today).

Whether it goes beyond OPR, and whether DOJ attorneys looking at the law decide that prosecutions are warranted or worth further examination remains to be seen.

But Obama left the door open.

That’s what I took from Obama’s speech.

Thanks for reading.

 

UPDATE:  For those wondering if the  Bush holdovers in the DOJ can simply sabotage these investigations; and how the Holder DOJ differs from the Mukasey DOJ, Thorwald has this to say:

The answer is pretty simple, and, when you think about it, common sense.  But let me start with a confession, of sorts: I am a Bush Administration hiree.  DUN-DUN-DUNNNN!  Okay, now that the scary music has stopped, also consider this: I am also a progressive.  When I interviewed in the division I am now in, was I asked about my political leanings?  Uh, no.  I was asked about my legal experience, and my now bosses wanted to know if I could write a sentence coherently and not stand up in court and be a jackass.  I was asked about, frankly, and to put it simply, my skills to pay the bills.  They wanted to know if I am a good lawyer.  Monica Goodling did not run every interview session for the thousands of hires over the course of the last 8 years.  She just didn’t.  

Besides, it doesn’t matter, not at the civil service level.  Here’s another little secret: I work with conservatives.  People I would clearly classify as conservative ideologues.  I have a guy next door with some pretty zany views on some things.  He walks into a booth and likely pushes every candidate button I do not.  The guy is Hannity lite.  He’s a nut bag.  

But you know what?  You put my legal writing next to his, and there’s no difference in argument.  His position on certain sections of the law are the same as mine, and the same as everyone in our office.  Because it’s the law.  It says A, we argue A.  Because in 90% of our cases, the law always says A.  And that’s true even though we’re doing some things in a relatively hot policy area.  Not to brag, but my office is not doing asset forfeiture work or postal truck crashes.  We are doing stuff in hot areas.  

But even where the law is not clear, and it’s ultimately a legal policy call, neither I nor Dittohead McGee next door are making those decisions.  He could have been hired by Monica Goodling–Hell, he could have dated Monica Goodling, sired her spawn, and attended Federalist Society banquets together at a White House Prayer Breakfast with the Bushes themselves and burrowed so far in at DOJ that he is here for life–and he’s not making those legal policy calls.  Not in small cases, and not in big ones.

Those calls go to our civil servant bosses, Assistant Directors and our Directors.  They are adept, perhaps more than anything, at knowing which way the political winds blow.  This, in addition to their legal skills and encyclopedic knowledge of the institution and the law, is why they have their jobs.  And while they will argue for a legal position (and in my experience they do so with the law–and not ideological wishes–in mind), they are not making a call that will go against their bosses: the political appointees.

None of those political appointees are Bush holdovers.  They are Obama appointees.  Even where the political slots are currently filled by acting assistants and deputies and whatnot–all civil servants–they are not going to be making big calls without the okay of a politico at some level.  Not if they like their jobs.

So the theories that Bush holdovers can jellydick an investigation at will is wholly and utterly unrealistic.  Cuckoo Bird Palin-Lover next door couldn’t monkey-wrench a case if he wanted too.  too many levels of review and decisionmaking.  

Rest assured: the big calls are made by Obama’s people, not Bush’s.

Thanks again for reading.