[Posted by WLS — aka “Shipwreckedcrew” for all you coming from TPM]
The Leftwingnuts seem to believe that Chertoff is in line to be the AG — I happen to think otherwise, but that’s for another post.
But some clown named Spencer Ackerman, seriously lacking in an understanding of the Bill of Rights, or simply challenged in terms of reading comprehension, has a post up with a couple of links claiming that Chertoff lied in testimony before the Senate Judiciary Committee when recounting events surrounding the decision to allow the FBI to interview of John Walker Lindh without the presence of the attorney hired by his parents.
At issue is a statement given to DOJ Inspector General investigators in 2002 by a DOJ Prosecutor named John De Pue, a 25 year veteran of DOJ.
Bottom line — anyone reading De Pue’s affidavit would come away with the exact opposite impression given by Ackerman in his post. Lets compare what Ackerman claims and what the affidavit states.
Lets start with the basics — what De Pue was asked to research.
Unfortunately, the affidavit is posted as a .pdf file, so I must retype the parts I want to quote. I’m going to make liberal use of elllipeses, so I encourage you to read it yourself.
De Pue was “legal counsel” in the Crim. Div. Violent Crime and Terrorism Section. That means that as a “old hand” he served more in the “advice dispensing” role than in a trial attorney role. He was asked by his section chief — the section that might prosecute Lindh if he were referred to civilian authorities after his capture —
“…to consider a number of legal questions that could arise if Lindh, who was then a military detainee , were to be questioned by the FBI, particularly the possible consequences for such an interrogation if preceded by military or intelligence questioning.”
Significantly, De Pue makes it clear in his affidavit that at the time he was given this tasking, it was a hypothetical as it wasn’t clear if/when such questioning might take place, or whether it had taken place already.
“It was apparent from my tasking that no one in our office had any concrete knowledge when such questioning might occur or the circumstances of any preceding questioning, and that the analysis was to be based upon hypothetical possibilities.”
Now, lets compare this intial information to Ackerman’s accout.
Wait, Ackerman doesn’t even consider the question of what De Pue was asked to do, and doesn’t even mention that when De Pue got involved, he wasn’t being asked to advise the interrogation team, only to try and anticipate what problems might hypothetically arise in any future prosecution connected to such an interrogation.
Here’s what Ackerman does say:
“Lindh, famously, was apprehended by CIA operatives in November 2001 in the Taliban stronghold of Mazar-e-Sharif. The FBI, learning that an American citizen was in custody in Afghanistan, sought to interview him, but questions quickly arose as to what legal protections Lindh needed to be afforded. De Pue, uncertain about what information taken from Lindh could be admissible in court, asked DOJ’s Professional Responsibility Advisory Office for its input.”
That sure sounds like Ackerman’s claiming that De Pue’s role was to advise the interrogation team, and that he had issues which he tried to get answers about from PRAO. But, that would be wrong. More from De Pue:
“At some point during my consideration of these issues, I became aware that Lindh’s parents had retained [defense counsel] …. [who] was seeking access to Lindh. I was quite certain that such retention did not, alone, have Fifth or Sixth Amendment implications, but was uncertain whether, under state ethics rules as applied to the Department of Justice by the “McDade Law”, such retention created an ethical issue for any Department attorney involved in such questioning.”
What De Pue is saying is that the fact that Lindh’s parents retained an attorney was not significant for Fifth or Sixth Amendment purposes — i.e., De Pue believed any statement given by Lindh would be admissible in a later prosecution regardless of his attorney’s presence. De Pue’s only concern was an ethical one — concerning the involvement of an attorney in questioning a potentially adverse party who the attorney knows is represented by counsel in connection with the matter under investigation.
TPM-Ackerman, couldn’t have gotten this anymore wrong when he wrote:
“In early December a PRAO attorney named Jesselyn Radack advised De Pue that Lindh couldn’t be interviewed by the FBI for the purposes of any prospective criminal prosecution unless the lawyer retained for him by his parents, James Brosnahan, was present.
When De Pue sent Radack’s advice to his superiors, he learned within hours that the FBI had already interviewed Lindh without counsel, potentially jeopardizing any prosecution of him.”
Wow — this couldn’t be more wrong, and evidences a simple lack of reading comprehension. Lets go back to De Pue’s statement:
“On Friday, December 7, 2001, Ms. Radack sent me an email stating that, in her office’s view, because Brosnahan had been retained, an FBI interview of Lindh could not occur.”
A couple of things need to be considered here. First, by De Pue’s own account, he was simply instructed to look at a couple of legal issues on a hypothetical basis. When he called PRAO seeking some advice, it was still part of his hypothetical research — he had no connection to the interrogation effort underway in Afghanistan, and was unaware of what was taking place.
Second, PRAO is an Advisory Office in DOJ — it is not a policy office. It exists to assist attorneys in navigating questions concerning ethics — not legal issues involving admissibility of evidence. It exists because DOJ attorneys are all licensed in individual states, and are subject to the ethics rules of the state’s where they are licensed. Those ethics rules vary by state, and DOJ attorneys often practice in states other than those where they are licensed. So, when issues arise, DOJ has a one-stop-shop for prosecutors to call and get advice in order to avoid being charged with an ethical violation. If PRAO gives an attorney advice on how to proceed, and the attorney follows that advice, PRAO will defende DOJ attorneys against any ethical charges arising out of their conduct. But, the attorney does not have to follow PRAO’s advice — it is only advice.
But, back to the idea that the interview conducted by the FBI without the presence of the attorney retained by Lindh’s family, De Pue goes on:
“… the Chief of the Appellate Section emailed me expressing the view that any such interview would not be subject to suppression. She subsequently emailed me a memorandum J. Douglas Wilson, formerly of the Appellate Section and presently the Criminal Chief of the San Francisco US Attorney’s Office … concluding that the sole remedy for a “McDade” violation was to discipline the responsible attorney and that suppression of any resulting statement was unwarranted.”
One might wonder where in De Pue’s affidavit does Ackerman get the basis to arrive at the conclusion that there was concern in DOJ that the Lindh prosecution was “jeopardized” by the interrogation without the presence of his counsel?
He doesn’t. It’s not in there. He made it up. But it gets him to the point of his duplicitous hit-piece — a swipe at Chertoff. Without any basis in the De Pue affidavit at all, Ackerman comes to this stunning conclusion:
“… De Pue’s boss, Jim Reynolds, told him in January 2002 “that the Criminal Division’s leadership was disturbed that I had sought” Radack’s advice. The division “leadership” — that is, Chertoff — wanted Lindh prosecuted, despite the flagrant inadmissibility of the FBI interview, which proved to be the cornerstone of the government’s case.
1) I don’t think Chertoff was alone in wanting Lindh prosecuted. I’m not sure who wasn’t on that list.
2) Lindh’s statement to the FBI wasn’t “flagrantly inadmissible” — it wasn’t inadmissible at all.
In fact, his statement was the basis upon which Lindh decided to plead guilty, and it was the cornerstone of the factual allegations making up his guilty plea.
Re Chertoff’s comments to the Senate Judiciary Committee, PRAO’s advice was sought informally by a Section attorney not involved in the case but asked to look into certain questions that might later arise if there was a case. That Section attorney wasn’t working on the prosecution, or advising the interrogation team — he was only considering possible hypotheticals that might arise. The PRAO attorney was only asked about a hypothetical, not for a specific opinion on a specific question. PRAO’s response was advice, and it didn’t concern the question of admissibility, but only of ethical considerations.
But, Ackerman can’t leave unwell-enough alone, and concludes with this laugher:
“If De Pue is to believed, Chertoff dissembled about both Radack’s advice and De Pue’s decision to seek PRAO’s perspective in the first place, all to insulate himself from a botched investigation. “
Funny, I don’t think the investigation was botched from Lindh’s point of view.