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TPMuckraker on Chertoff “Lies” — Written by a Clown named Ackerman

[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.


108 Responses to “TPMuckraker on Chertoff “Lies” — Written by a Clown named Ackerman”

  1. I am serious. Can they be honest about anything?

    JD (e2fc98)

  2. It sounds like Ackerman either doesn’t understand the difference between ethical and legal obligations or he doesn’t care about the difference.

    Good job wading through the information and presenting it effectively and persuasively.

    DRJ (bfe07e)

  3. Ackerman either doesn’t understand the difference between ethical and legal obligations or he doesn’t care about the difference.

    JD (e2fc98)

  4. I don’t see the ethical obligations. The little shit went to Afghanistan to, in his own words, kill Americans. Asked by the FBI whether they could question him as they brought him bundled back to face Due Process I would have answered, “Sure, unless you just want to throw him out of the airplane instead.”

    nk (a6ecc6)

  5. If Lindh’s attorney thought that the statement was inadmissable, then he should have brought a suppression motion in the criminal case. You are right, Ackerman’s piece is silly and dishonest.

    Robin Roberts (6c18fd)

  6. Huh?

    “the Professional Responsibility [Advisory] Office was not asked for advice in this matter. I’m familiar with the matter. I was involved in it.”

    It was.

    Looks like a lot of effort expended to defend a lie.

    How about some actual topical lefgal opinion…like whether larry Craigcan withdraw his guilty plea or not.

    alphie (99bc18)

  7. Would it surprise to know that Ackerman was, and/or probably still is with the New Republic; apparently the’re still too circumspect for him. One recent example involving Josh Marshall’s denial of the administration’s democracy push, four years ago. But off course, this involves Suleiman Faris, aka Hamza, aka John Walker Lindh;
    of whom Esquire, said a year ago “Do We Deserve this Man”

    narciso (c36902)

  8. Alphie — one DOJ lawyer, not connected to the Lindh matter at the time, took it upon himself to ask an attorney at PRAO a question.

    No one involved in the Lindh matter sought the advice of PRAO.

    And, the PRAO advice was inapposite — it had nothing to do with the legality of the interrogation. The bottom line is, no one cared what PRAO had to say.

    Re Larry Craig — I’m not sure of the standard for withdrawing a plea in Minnesota, but generally speaking, no he can’t at this point.

    He should resign and be done with it.

    WLS (077d0d)

  9. How about some actual topical lefgal opinion

    How about sticking to the topic at hand, Stauch Brayer.

    Paul (09c70a)

  10. Paul — I don’t mind Alphie’s asides. Its a topic in the news, and a question of general interest.

    While he a troll, he’s a well-behaved troll and is no different here in stirring the pot than I am over at TPM.

    WLS (077d0d)

  11. WLS,

    What ever happened to: “The truth, the whole truth, and nothing but the truth?”

    Showing us at exactly what angle an in exactly what light to examine Chertoff’s testimony so it doesn’t look like a complete lie is hardly unbiased legal opinion.

    It’s just spin.

    alphie (99bc18)

  12. alphie – Aggressive ignorance, or willfully obtuse? Either one is quite fitting …

    JD (e2fc98)

  13. Alphie — I could have called PRAO back in the day and asked them a question about the Martha Stewart case. If PRAO had answered it, would that mean that PRAO was consulted about Martha Stewart — even though no one connected with the Stewart prosecution was involved?

    WLS (077d0d)

  14. WLS,

    I imagine Chertoff knew about the inquiry. If he didn’t, he was incompetent(no surprise).

    But you’re overlooking the real nugget.

    The PRAO lawyer who provided her opinion on this matter was fired and then threatened with a criminal prosecution by the guys you’re carrying water for now.

    alphie (99bc18)

  15. Yes, alphtard. Chertoff knew of every single conversation that went one in the entire department. If he did not, he was clearly incompetent. What a douche nozzle, you are.

    JD (e2fc98)

  16. Alphie, now you are calling people incompetent based on nothing but your own fantasies devoid of any real evidence.

    Typical of your behavior really.

    Robin Roberts (6c18fd)

  17. Alphie:

    Yes, the Radack saga is interesting. But, there’s a lot more to it than you suggest. She was investigated for possible criminal acts — the very real likelihood that she leaked information about a pending investigation to Isikoff at Newsweek.

    Here is a very even-handed portrait of the whole episode:

    “In March 2002, Radack learned that only two of more than a dozen e-mail messages from her had been turned over to the federal judge in the Lindh case… Neither of the messages that were turned over included her comments that the interrogation had been improper…. Radack was able to recover the missing messages from a backup system, which she presented to her supervisor, Claudia Flynn. Radack offered to send them on to prosecutors, but Flynn told her not to, Radack says.

    A few months later, the e-mail messages, obtained by reporter Michael Isikoff from an anonymous source, got their first public airing in the pages of Newsweek. Radack admits she talked to Isikoff, but won’t discuss whether she gave him any materials. An investigation into the disclosure was immediately launched by the department’s inspector general. Ron Powell, an investigator with that office, contacted Radack, who by that time was at a private law firm after leaving Justice in late March 2002.

    It is when Radack declined to talk to Powell that the investigator turned up the heat. Radack says Powell called the firm, Hawkins, Delafield & Wood, and told at least one employee that Radack was being investigated for criminal acts. Powell then filled the firm’s managers in on his investigation, and said that Radack was refusing to cooperate…. The law firm found that a number of phone calls and faxed messages had been placed to Isikoff from Radack’s phone; it then suspended her when she refused to sign a statement swearing she was not Isikoff’s source.”

    Radack’s opinion to De Pue was wrong, and it came in a crucial, extraordinarily high profile case.

    She’s clearly the most obvious suspect for the leak to Isikoff, so the investigation was warranted.

    Has she been dealt with harshly? Sure, but she brought it on herself.

    WLS (077d0d)

  18. Robin,

    A year or so from now, when Hillary is running the White House and the Dems are running both Houses of Congress, the only check on their power will be questions from Republicans in Congress.

    If you truly believe administration personnel have the right to just say whatever they want before Congressional committees, be prepared to live with the consequences.

    alphie (99bc18)

  19. Alphie, what I’m getting tired of having to live with is your inability to back up any of your wild claims. In this case, your vague accusations against Chertoff.

    Robin Roberts (6c18fd)

  20. alphtard – Was Chertoff responsible for knowing the content of every conversation that went on in the office? I know you never actually engage in a discussion, but for fucks sake, this one is especially stupid, even for you.

    JD (e2fc98)

  21. Chertoff, in 2003, told Kennedy, under oath, that “the Professional Responsibility [Advisory] Office was not asked for advice in this matter. I’m familiar with the matter. I was involved in it.”

    After he gave this testimony, Depue’s e-mails contradicting this came out.

    Chertoff then stated that he was aware of the contents of the e-mails in 2002. (helps if you click on all the links guys)

    Bob Smith (1b6f54)

  22. Bob Smith – Actually, it would help if you would actually read the post. WLS lays out how the investigator came to be, how the investigator contacted PRAO, in regards to a hypothetical. DePues could have been working on this, IN THEORY, while Chertoff was part of the actual FBI investigation.

    What is it with the Left today?

    JD (e2fc98)

  23. Re this line from De Pue’s affidavit:

    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.”

    I’m assuming that there were no Fifth or Sixth Amendment implications from the “retention” all by itself because the family’s retention of counsel is not the same as Lindh himself, or his lawyer on his behalf, making a request that custodial interrogations cease unless and until Lindh had consulted with his lawyer. Is that your assumption as well, WLS?

    If so, don’t you think that this is probably the flaw in Ackerman’s reasoning — i.e., he’s assuming that retention of counsel is equivalent to an invocation of Lindh’s Miranda rights even without such a demand?

    As for the distinct question of whether mere knowledge of retention of counsel raises an ethical violation:

    I haven’t checked any other state’s ethical rules, but Paragraph 15 of the Preamble to the Texas Disciplinary Rules of Professional Conduct (codified at Tex. Gov’t Code Ann. tit. 2, subtit. G, app. A, art. 10, § 9 (Vernon Supp. 2007)), states:

    Violation of [an ethical] rule does not give rise to a private cause of action nor does it create any presumption that a legal duty to a client has been breached. Likewise, these rules are not designed to be standards for procedural decisions. Furthermore, the purpose of these rules can be abused when they are invoked by opposing parties as procedural weapons. The fact that a rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the rule. Accordingly, nothing in the rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.

    I think this was based on one or another of the model codes, and I would be surprised if other states did not have similar provisions.

    Beldar (1b82e4)

  24. Beldar – Don’t bother with facts. It will just confuse them, and they will latch onto a miniscule meaningless point, and take off down some rabbithole.

    JD (e2fc98)

  25. Robin,

    From a New Yorker article that was published two months before Chertoff testified before the Senate committee:

    Two days before Reimann began his interrogation, the Justice Department was notified by the F.B.I. that an agent planned to question Lindh without the presence of counsel. John De Pue, a trial attorney in the Terrorism and Violent Crime section of the Justice Department, was not sure if this was proper, and consulted with the Professional Responsibility Advisory Office, an internal-ethics unit.

    Willful ignorance is not a defense.

    Nor is legal hair-splitting.

    As you guys will believe anything it seems, why even go to the effort to construct a “defense?”

    alphie (99bc18)

  26. alphtard – Note how they do not give a timeline there? Note how they substantially either ignore, or misstate De Pues task as set out for him?

    JD (e2fc98)

  27. JD,

    Who cares about “timelines” or “tasks?”

    The New Yorker article was published two months before Chertoff testified.

    For him not to know, at the time he testified, that the Professional Responsibility Advisory Office had weighed in on the F.B.I. questioning Lindh, he would have to have been ignorant of what was going on in the department he was supposed to be managing and what was being written in the press about this case.

    Or he just lied.

    Take your pick.

    alphie (99bc18)

  28. Nope, alphie. You are proposing a false choice, and your command of the facts is so woefully inaccurate, that I will always, and I mean always, take the word of people like WLS over you.

    JD (e2fc98)

  29. Haha, JD,

    I think I got all the facts I need to know.

    If WLS had written that it was actually Chertoff’s evil twin who lied to the Senate committee that day (a better defense of Chertoff, IMHO), you would accept it completely.

    alphie (99bc18)

  30. Beldar @ 23:

    The Fifth and Sixth Amendment issues don’t arise because Lindh, as an adult, could decline any right to have a lawyer present during the questioning notwithstanding the fact that mommy and daddy hired one for him. So long as the questioning was otherwise voluntary, his lawyer’s absence is irrelevant. That’s one reason why PRAO’s position caused such head-scratching. But, on that point, no one at DOJ will ever claim that the PRAO attorneys are genius trial lawyers. That’s not their function, and they don’t think in those terms.

    Ackerman’s view is simply that of an ignorant layman. He had no idea what De Pue meant when he wrote about not having any Fifth or Sixth Amendment concerns, as is evidenced by Ackerman’s nonsensical claim that the interview was tainted. The fact that Radack was of that opinion only shows how little she understood the law.

    But, in Radack’s defense, I will say that PRAO is interested only in ethical angles to tricky situations, not legal angles. And, the McDade Law changed the landscape in the late 1990s.

    Prior to McDade, DOJ was able to exempt DOJ attorneys from ethical restrictions in certain states where the conduct in question was not a violation of DOJ policy even if it was a violation of the ethical rules of the state where the attorney was licensed. Joe McDade was a corrupt Florida Congressman who was on the receiving end of a DOJ prosecution that he eventually wiggled out from under during the Clinton Administration. As I recall, he had some complaints about some recorded conversations done at the direction of the prosecutor, and he filed a ethics complaint against that prosecutor where he was licensed. DOJ intevened on behalf of the prosecutor because the recordings were made in accordance with DOJ policy. That pissed McDade off, so he got the law changed in such a fashion that DOJ couldn’t exempt its attorneys under the Supremacy Clause.

    DOJ has largely worked around this with most state ethics panels. One issue of lingering difficulty, however, has been rules prohibiting contacts with represented persons. That was the issue that troubled De Pue when he learned of Brosnahan’s hiring, and that’s what he went to PRAO for advice on. It had NOTHING to do with the legality of interviewing Lindh.

    As an example of the turmoil caused by the McDade law, several years ago the Oregon Supreme Court ruled that the State’s ethics prohibition on deception by attorneys did not have an exemption for prosecutors, and all law enforcement operations using informants or undercover operatives at the direction of a prosecutor were in violation of the prosecutor’s ethical obligations. Until the Oregon legislature worked out an exemption, DOJ had to import prosecutors licensed in other states into Oregon to take over all cases involving informants and undercover operatives because prosecutors licensed in Oregon were subject to discipline for being involved.

    wls (fb8809)

  31. Alphie @ 25

    De Pue’s affidavit shows the New Yorker article to be factually wrong. That’s what you get for relying on Jane Mayer.

    The article suggests that De Pue went about researching the question after being told that the FBI intended to interview Lindh without his laywer.

    That’s not what De Pue says.

    De Pue says he was asked to research questions about the propriety of the FBI questioning Lindh while he was a military detainee, and after he had been subjected to military question for intelligence purposes. It was all presented as a hypothetical because no one in his office knew when or if the FBI was going to conduct this interrogation. Lindh was not then the subject of a criminal investigation, as he was still a POW.

    It was while De Pue was looking into those questions that De Pue first learned that Brosnahan had been hired. So, De Pue didn’t go to PRAO because the FBI said they were going to question Lindh without Brosnahan being present. He went to PRAO because he understood the FBI was going to question Lindh, and he now learned that Lindh had an attorney. He wanted to know the ethical implications, not the legal implications, of Brosnahan being retained by the parents.

    Mayer’s piece is as much a distortion as Ackerman’s.

    wls (fb8809)

  32. wls,

    I see a lot of smoke and mirrors, but I don’t see anything that counters the argument that Chertoff lied under oath.

    Even though De Pue’s statement was rather vague about the details that would reflect badly on Chertoff & Co., he states quite clearly that they were “disturbed” that he had gone to the PRAO about the Lindh interrogation.

    And it’s hard to believe Chertoff and the F.B.I. didn’t botch the whole thing when Lindh only plead guilty to two (the least serious) of the ten charges filed against him.

    A sad tale of the excesses of this administration, excesses that have probably cost America two wars.

    alphie (99bc18)

  33. WLS, thanks for the clarification and additional context. I hadn’t followed the Lindh case closely, and neither was I familiar before reading this post with the “McDade law.”

    Beldar (1b82e4)

  34. A lot of trolls I think I could be nice to were we ever to meet in person. Alphtard, not so much.

    JD (5edd3b)

  35. Ackerman: “Chertoff, in 2003, testified that he was unaware of internal dissent over a decision by the FBI to interview Lindh without the presence of his family-retained lawyer. “I have to say, Senator,” he told Sen. Ted Kennedy (D-MA), “that the Professional Responsibility [Advisory] Office was not asked for advice in this matter. I’m familiar with the matter. I was involved in it.””

    Ackerman: “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.”

    De Pue: “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.”.

    Ackerman was wrong to say that De Pue was “uncertain about what information taken from Lindh could be admissible in court,” but that is secondary to the fact that others were.
    Again: “Chertoff, in 2003, testified that he was unaware of internal dissent over a decision by the FBI to interview Lindh without the presence of his family-retained lawyer.”

    The question in the post was and is whether Chertoff is being truthful in that statement. WLS accuses Ackerman of overstating his claims, but that overstatement is courtesy of WLS.
    And as long as you’re going to go on with the trash talk I might as well join in: why don’t you stop advocating for the republican party and think of advocating for the good of the country.

    AF (e7839e)

  36. AF – Were Chertoff and De Pues working together? No. Aggressive ignorance is your strong suit.

    JD (5edd3b)

  37. JD,

    Even Chertoff (De Pue’s boss at the time,btw, genius) admits he lied:

    And I imagine if Mr. De Pue was forced to testify under oath on this matter, we’d discover a few more lies.

    alphie (99bc18)

  38. Listen you little shit. For whatever reason, I thought you might be honest, and read your link. Amazingly enough, it does not say what you proclaim it to say. You shits have to be intentionally obtuse to maintain this.

    JD (5edd3b)

  39. AF — and as Chertoff explained, there was no internal dissent. The fact that one attorney at PRAO didn’t understand the Fifth and Sixth Amendments, and the concept of waiver, and instead conflated them in with an ethics concern, does not mean there was “internal dissent”.

    If your standard is simply that one lawyer in DOJ disagreed with another lawyer’s legal analysis, then the safe answer to every question put to any DOJ representative about any decision made on any case would be that it was the subject of “internal dissent” because there is always someone who doesn’t understand the law.

    As to Chertoff’s comment about PRAO not having been asked for “advice” — there is a process employed with both OLC (Office of Legal Counsel) on legal issues, and PRAO on ethical issues, where a formal request is made for a written opinion, signed by the chief of the office, when “advice” is being sought.

    One section attorney placing a call to the PRAO office and speaking with the duty attorney about a question is not seeking “advice”. They are there as a resource for line prosecutors, either Assistant US Attorneys or DOJ Trial Attorneys, to be able to get quick answers to simple questions that arise on a day-to-day basis, such as “If I advise and agent to do XYZ, is the State Bar of California going to take action against me under an ethical rule.” The PRAO attorney will look up the guidance opinions from the California Bar and get back to you with an answer.

    That is the process that De Pue and Radack engaged in, but that was not the process Certoff was asked about.

    WLS (077d0d)

  40. Amazing how that happens, isn’t it, JD?

    Robin Roberts (6c18fd)

  41. I’ll side with WLS on this one. He’s right on the money. I worked with John (BTW, it’s De Pue, not De Pues) at the time. His sources make me wonder whether he’s one of my supervisors (heh!).

    509th Bob (077d0d)

  42. “The incident with the ethics office reflects what several Justice Department lawyers described as pressure to toe a hard line after the Sept. 11, 2001, attacks. When Jesselyn Radack, a lawyer in the ethics office, gave advice that ran contrary to Chertoff’s wishes, she says, her promising career foundered.

    She received a terrible evaluation less than a year after getting a merit raise and a bonus. When she leaked her e-mails to a Newsweek reporter and took a job with a private firm, the Justice Department told her employer that she was under investigation. She was forced to leave that job.

    “No one contests that Chertoff is a brilliant lawyer,” said Radack, who is suing the government, “but I was retaliated against for doing my job.”

    Newsweek broke the Radack story, and other newspapers and magazines have written about aspects of her situation. A White House spokesman said yesterday that Radack was in a different department and Chertoff had no authority over her.

    Lindh was captured while fighting for the Taliban. On Dec. 7, 2001, John F. De Pue, a counterterrorism prosecutor, asked Radack whether the FBI agents could question Lindh without the lawyer his family had hired. Radack consulted with a senior attorney in her office. “We don’t think you can have the FBI question [Lindh],” she wrote. “It would be a pre-indictment, custodial overt interview, which is not authorized by law.”
    The FBI interviewed Lindh anyway. Three days later, Radack wrote to De Pue: “The interview may have to be sealed or only used for national security purposes.”
    De Pue responded: “Ugh. We are trying to figure out what actually transpired.” He filed an affidavit in 2002 noting that the leadership of the criminal division was “disturbed that I had sought [ethics office] advice in this matter.”
    Lindh attorney James J. Brosnahan said he asked to fly to Afghanistan to meet with Lindh.
    “John was not treated well,” he said. “He was held 54 days without counsel.”
    In spring 2002, Lindh’s attorneys asked a federal court to toss the FBI interrogation. Radack discovered, she says, that a number of her crucial e-mails were missing from government’s file in the Lindh case and raised this with superiors.
    Lindh pleaded guilty to aiding and carrying guns for the Taliban and is serving a 20-year prison sentence.”

    AF (e7839e)

  43. AF — and your point is what? That the New Yorker can get facts wrong.

    What Mayer wrote in this article is contrary to what De Pue himself wrote in the affidivat in July 2002, as part of the investigation into Radack leaking her emails to Newsweek.

    Radack’s got nothing to complain about. She claims she was punished for doing her job — she f’d-up her job. She gave a legally incorrect answer on a crucial question, and caused needless consternation that was only obviated when more talented attorneys weighed in with the correct view.

    The fact that she got a merit raise and a bonus the prior year, followed by a negative review the subsequent year can be explained by the fact that she screwed up — big, under a spotlight.

    What would you expect to happen to her? Its not a civil service job. You get paid to perform. You don’t measure up to the job’s demands, they’ll find someone who does.

    WLS (077d0d)

  44. Haha, WLS,

    What bad advice did she give?

    alphie (99bc18)

  45. alphie, what do you think?

    Christoph (92b8f7)

  46. Christoph,

    Lindh was either:

    1. A POW
    2. An American criminal

    Neither status justified what was done to him.

    Considering the wimpy guilty plea Chertoff’s boys got…Radack gave the correct advice.

    Chertoff and everyone above him up to Bush should have been sacked.

    alphie (99bc18)

  47. Yes, but why 1?

    Christoph (92b8f7)

  48. Christoph, Lindh was not a POW because he did not meet the criteria for such status spelled out in various international conventions–wear an insignia (uniform) that can be seen at a distance, carry weapons openly, act under orders from a superior who is a member of an organization that follows international rules of warfare. Under the laws of war he was an unlawful combatant.

    He, an American, also violated US law and was charged with a crime in Federal court. As such he was entitled to certain rights including the right against self-incrimination and the right to counsel. He also had the right to waive any of those rights. He consented to the interview by FBI agents and voluntarily made statements to them.

    Stu707 (adbb5a)

  49. Haha, stu,

    Nobody, not even Bush, denies Lindh was a member of the Afghan Army. Afghanistan signed the Geneva Conventins.

    Considering his host, our “ally” Gen. Dostum had:

    1. Doused him in gas and tried to light him on fire.
    2. Dropped two grenades into his cell.
    3.S hot him(our guys left the bullet in his leg for a week “for evidence”),.

    I think that trying the “no uniform” straw man is rather embarrassing.

    Try something else.

    alphie (99bc18)

  50. Even if Lindh was a POW, which is debatable given the status of the Taliban, that does not immunize him from crimes under US law. Once again, Alphie, your analytical skills are nonexistant. You really should work on those.

    AF, being punished for leaking to Newsweek is quite appropriate, and is not “retaliation”. If her new employer decided to discharge her for such violations of professional ethics, they too are within their rights.

    Robin Roberts (6c18fd)

  51. Geez. Smarter trolls, please.

    Paul (09c70a)

  52. Analytical skills, Robin?

    Here’s a photo of Lindh shortly before the F.B.I. “interrogated” him:

    Remember, too, that he has a bullet that’s been festering in his leg for a week.

    And, violating the Geneva Conventions, we prevented the letter his parents sent via the Red Cross telling him he had a lawyer.

    And Lindh himself asked for a lawyer several times.

    The F.B.I. claim that he waived the right to a lawyer is laughably sick…look at him.

    That’s your vision of “justice.”

    alphie (99bc18)

  53. Alphie, no that’s your vision of changing the subject. Your troll behavior got old a long time ago.

    Robin Roberts (6c18fd)

  54. Sure, Robin,

    I can see how a photo of Lindh going into his F.B.I. interrogation would be considered “off topic” in a thread about Chertoff’s efforts to violate his rights under both U.S. and internaional law…and then lie about it.

    alphie (99bc18)

  55. Alphie, Lindh got his jihad but its Chertoff’s fault that he got shot at? No. Nice try at changing the subject. You’ve failed to establish that chertoff lied about anything because as usual your “evidence” doesn’t say what you claim it does. Your usual feces flinging rhetorical style got old a long time ago.

    Robin Roberts (6c18fd)

  56. Alphie – Are you calling WLS a liar too?

    JD (e15e05)

  57. JD, you have to ask?

    Paul (09c70a)

  58. No, JD,

    I’m saying Lindh was demonized and mistreated by the Bush administration to hide some of their embarrassment at botching the capture of Osama bin Laden.

    I’m not calling WLS anything…I’m just questioning what his definition of the word is is.

    I mean, come on:

    “I have to say, Senator, that the Professional Responsibility [Advisory] Office was not asked for advice in this matter. I’m familiar with the matter. I was involved in it.”

    The PRAO did indeed offer up “advice” in this matter, two days before Lindh was interrorgated by the F.B.I. without his lawyer.

    Which was…don’t interrogate Lindh without his lawyer.

    alphie (99bc18)

  59. More fantasies without evidence, Alphie.

    Robin Roberts (6c18fd)

  60. JD – You need to remember for these lefties the war on terror doesn’t exist or is a bumper sticker. When anything happens like with Lindh, they are are allowed to shoot at us and try to kill us on the battlefield, but when we capture them, we have to read them their Miranda rights and wait for counsel before talking to them. That’s the criminal approach to terror and war as opposed to the military approach. That’s exactly why the left wants to bting the Guantanamo prisoners into the U.S. court system instead of leaving them in the military justice system.

    daleyrocks (906622)

  61. Staunch Brayer, if you were any more obtuse you’d be a triangle.

    Paul (09c70a)

  62. BTW, If Lindh had actually joined the Afghan ARMY (taken an oath of allegiance), he would be in more trouble than Flash Gordon.
    I can’t quote the relevant sections of the USC (I’ll leave that to the various current and prior USA’s reading this blog), but I think not being accorded POW status (which, since he wasn’t wearing a uni – the Afghan army does have uniforms, the Taliban didn’t – he wasn’t entitled to) was the least of his problems with our Justice Dept.
    It is very conceivable, that had the matter gone to trial (he took a deal, after all), Mr. Lindh stood a very good chance of being charged with Treason – and stood a better chance IMHO of being found guilty, and would have been facing execution for complicity in the death of the CIA agent, Johnny Span.
    Personally, like the guy who sold sat-photos to the Mossad, they should both rot in jail until they reach room temp.

    Another Drew (8018ee)

  63. alphie – WLS states definitively that your position is contrary to the facts. Is he lying?

    Never mind. I do not know why anyone bothers.

    JD (b830c0)

  64. “and would have been facing execution for complicity in the death of the CIA agent”

    Wow, AD, that’s out there.

    Lindh was naked, bound and had a gunshot wound and running from the same guys who killed Span.

    Take a dose of sanity from Rick Perry and secure that wacky thinking…its days are over.

    There’s a new sheriff in town….and his name is reality.

    Bush and Petraeus are currently arming any Sunni terrorist group or Shite death squad in Iraq who will at least pretend to be on Americas side for the press.

    Lindh never even fired a weapon at the thugs we put in power in Afghanistan, much less any Americans.

    I suspect he’ll get a pardon shortly after Bush is back in Tejas cuttin’ brush.

    alphie (99bc18)

  65. daleyrocks – This is a direct result of our military prosecuting this war in a manner which minimizes casualties. I guess the Leftards would prefer summary execution on the battlefield, then we would not have to bother with this criminal justice BS during a goddam war.

    JD (fd9a5b)

  66. alphie – Care to bet on that pardon for Lindh?

    JD (fd9a5b)

  67. Alphie, given the amount of your opinions that are based on nothing but your overactive fantasy life, imagining pardons for Lindh is really funning. In fact, you really don’t have any business telling others about reality as your contact with it is solely by hearsay.

    There is no presidential candidate proposing pardons for Lindh, and the only way that Hillary would consider it is if Lindh’s family turned chinese.

    Robin Roberts (6c18fd)

  68. Robin,

    May I ask what you base your opinion that Chertoff was telling the truth when he testified that the PRAO was not asked for advice in this matter on, if not an overactive fantasy that “advice” does not mean “advice?”

    alphie (99bc18)

  69. Alphie, that point has been addressed repeatedly above. You’ve done nothing to advance the discussion except ignore all the facts inconvenient to your fantasy life.

    Robin Roberts (6c18fd)

  70. Did Chertoff tell De Pue to contact PROA? Nope. Did Chertoff get briefed on the PROA findings by De Pue. Nope. Was Chertoff standing next to De Pue when he called PROA? Nope. But, somehow, since they both work for the DOJ, Chertoff should have just known. Psychic like.

    Like I said before, you are pointless. You are not seeking understanding, and I know this, yet you continually sucker me into to responding to your douchebaggery. A contrarian of the highest order.

    JD (0b8ce0)

  71. What “facts” Robin?

    Even if you find John De Pue’s vague, ass-covering statement credible (I don’t), he was still the one tasked with checking into the methods that could be used during the very real F.B.I. interrogation that took place two days after De Pue told his boss that he, Radack and two other senior DOJ lawyers had decided would be unethical, at the very least.

    This was politics, not justice, and you guys know it.

    alphie (99bc18)

  72. What’s it all about alphie?
    Is it just what leftie talking points you can give?
    It’s one thing to talk about justice to an avowed enemy;
    It’s another to malign those who fight so you can live.

    nk (a6ecc6)

  73. Alphie, you really ought to consider how much of your opinions rely on your fantasies and not the real facts of the case.

    Robin Roberts (6c18fd)

  74. …two days after De Pue told his boss that he, Radack and two other senior DOJ lawyers had decided would be unethical, at the very least.

    This is precisely the kind of bullshit fucking lying that pisses me off. There was no decision that it would be unethical, and the only dissent came from Radack, who happened to be profoundly wrong.

    JD (0b8ce0)

  75. Radack consulted with the senior lawyer in the PROA, JD.

    That it would be unethical to interrogate Lindh without his lawyer present was a conclusion both of them reached.

    Stop gettin’ angry and do a little research, eh?

    alphie (99bc18)

  76. Was it his lawyer, Alphie. The parents retained the lawyer, no?

    Is an enemy combatant entitled to private counsel? I guess we should create an entire Division for the Armed Services of nothing but lawyers, wandering around on the battlefield.

    Sorry folks, I know better than to try to discuss things with this fool. I just cannot stand to read his blatant lies, changes of subject, and overall douchenozzlery, and let it go unanswered.

    So again, Alphie, you are claiming that WLS is either grossly wrong, or is lying, since his explanation is quite opposite from yours.

    JD (0b8ce0)

  77. Alphie, you’re unbelievable. When Lindh was captured by our troops, he was asked: “What are you doing here?” He answered, “I came here to kill you.” Now, to any sensible person, it would seem that the only thing that we did wrong was not to hit him as hard as we could at the base of his skull with an entrenching tool and bury him right then and there. Yet you suicidal leftie assholes complain that in his captivity his champagne was not properly chilled (that’s a metaphor BTW.)

    nk (a6ecc6)

  78. Alphie, this is clearly an area of law you are not competent to understand.

    Robin Roberts (6c18fd)

  79. nk,

    Lindh was captured by Gen. Abdul Dostum’s thugs, not our troops.

    At least get some facts to back up your empty affirmations.

    The only contact Lindh had with Americans before the press showed up were the C.I.A. guys that were supervising the slaughter of Lindh and his fellow captives.

    alphie (99bc18)

  80. Typical alphie, when stuck, invents some new slanders.

    Robin Roberts (6c18fd)

  81. The only contact Lindh had with Americans before the press showed up were the C.I.A. guys that were supervising the slaughter of Lindh and his fellow captives.

    This should be framed and placed on a monument for trolls everywhere. The patent disregard for our troops, the overt sympathy for the terrorists, and the patent dishonesty is jaw dropping.

    I guess Lindh was just some peaceful goatfucker, minding his own business, until the Zionist American troops in their war for oil came to slaughter these innocents.

    He was fighting with the fucking TALIBAN, in a war against Americans.

    Once again, the policies that the Left espouses make it more likely that we will just start double tapping these people, rather than keeping them above ground.

    JD (0b8ce0)

  82. How do you slander the unslanderable, Robin?

    If we’d have gone after al Qaeda instead of the Taliban, the whole GWOT would be done, bin Laden would be long dead and America wouldn’t be considered an economic and military joke by the rest of the world.


    alphie (99bc18)

  83. Alphie, you really are not in connection with reality. You live in a bizarre fantasy land. The Taliban was sheltering Al Queda.

    Insane or on the side of terrorists, it is impossible to tell the difference with you.

    Robin Roberts (6c18fd)

  84. Right. There were no AQ in Afghanistan either, huh?

    Alphie is one of those fools that thinks killing Bin Laden will end this war.

    We are an economic joke to the rest of the world? if that is the case, we should cut off immediately, all aid, assistance, defense, and direct or indirect help to all countries in the world not named the United States of America. Let’s see how much of a joke we are.

    Goddam, you are dumb. How do you tie your shoes?

    JD (0b8ce0)

  85. I’m going to have to bookmark this one as classic Alphie is from Mars material.

    Robin Roberts (6c18fd)

  86. JD,

    The military aid we give to the rest of the world is just pork for Bush’s cronies.

    America’s non-military aid contributions to the world total up to about two days worth of Iraq “war” money.

    Or about what we borrow from China every single week.

    alphie (99bc18)

  87. Alphie, have you considered a cult deprogrammer? Some of them are quite good.

    Robin Roberts (6c18fd)

  88. Robin – It just keeps getting worse.

    alphtard – The military aid we give the rest of the world is just pork for President Bush’s cronies? If that is the case, we should remove all of our troops from everywhere in the world except Iraq and Afghanistan, and let everyone else provide for their own defense. Let’s see if any of those socialists with national healthcare can still pay for anything more expensive than a hangnail without the umbrella of security we provide for the world.

    All of our aid is soooo appreciated, so why even bother? Cut ’em off. Now. They shouldn’t want our money anyway, since our economic system is a joke.

    Good Lord, you keep on surprising me in your quest to become the stupiderest commenter around.

    JD (0b8ce0)

  89. I’m amazed the lefties keep defending the accuracy of the various TPM sites. Although they seem marginally better than Media Matters, they are usually just pure horse shit, factually and spin wise. I guess if that’s where they depend for their talking points you can’t blame them.

    daleyrocks (906622)

  90. JD – This can’t be good for a program.

    daleyrocks (906622)

  91. I love this:

    Lindh was captured by Gen. Abdul Dostum’s thugs, not our troops.

    So if we had not taken him from them his best possible fate would have been what I suggested earlier — a cheap beheading and a cheap burial. His second best possible fate would have been service in an Afghani brothel.

    But we are sooo bad people to talk to him when his parents had hired a lawyer.

    alphie, you’re priceless. But you’re not as bad as the rest of your comrades. You have to try harder. Accuse America of creating a genetically-engineered virus which attacks the Islam gene causing death and/or infertility.

    nk (a6ecc6)

  92. daleyrocks – This helps ground me. The nuisances in the day to day life are not quite so bad after reading rants from alphtard, Lazarus, and AF. They make my wife seem positively reasonable.

    JD (0b8ce0)

  93. Understood. As long as you let them go.

    daleyrocks (906622)

  94. daleyrocks – I do. Thanks. I appreciate it.

    JD (0b8ce0)

  95. Actually, I had a student in one of my classes a couple of years ago that reminded me quite a bit of Alphie. Came up with long bizarre “dog ate my homework” stories that would include weird invented conversations with me that never occurred, claims of snowstorms stopping her from coming to class when the day was clear, etc. We were waiting for her to claim alien abduction when she went to the department chair and told her that I was “prejudiced against people who didn’t come to class and didn’t do homework”.

    Robin Roberts (6c18fd)

  96. nk,

    I guess you guys will never get it.

    It’s not the petty lying and casual brutality of the neocons that people dislike…it’s their incompetence.

    alphie (99bc18)

  97. Robin – I had a Psychology professor that told us attendance was not mandatory, so after the syllabus was handed out, I did not come back to class until the mid-term, and was again absent until the final, each of which I got A’s on. I think he was pissed that I could get an A in his course without attending, and gave me a C. I had to appeal to the Dean to get it changed.

    JD (0b8ce0)

  98. Right, alphie. Because if we were the competent authoritarians, trampling all over the Constitution, you would not be able to post your drivel.

    The irony of you talking about petty lying is indescribable. Casual brutality? Examples please.

    JD (0b8ce0)

  99. alphie, your comments become less related to reality as you go. I’ve got this one bookmarked as an example of your bizarre weird disconnection with our planet. As for incompetence, you really have no basis for commenting on anyone else’s.

    Robin Roberts (6c18fd)

  100. That’s pretty bizarre, JD, but hey, what do you expect from Psychology profs?

    Robin Roberts (6c18fd)

  101. I think it was a pride thing. The poor saps that sat through his class all got lower grades than the guy who never went 😉

    JD (0b8ce0)

  102. His comments only have a passing acquaintance to reality when they start off. In this case, they just keep picking up speed as they run completely off of the tracks.

    JD (0b8ce0)

  103. Haha, JD,

    Just like the “war” on terror, eh?

    Have you seen Somalia, lately?

    Operation Enduring Freedom indeed.

    I see Bush is gonna ask for an extra $50 billion for his pals soon…I don’t think they’re gonna get it.

    alphie (99bc18)

  104. Its more than a little late to be changing the subject, Alphie. But go ahead and root for Al Queda in the Horn of Africa, we know you want to.

    Robin Roberts (6c18fd)

  105. Oh, Robin, you can do better than nonsensical boilerplate insults.

    I’m not cheering on Al Qaeda, just marveling, once again, at the incompetence and greed of the neocons.

    They chose Djibouti as the base for our “Freedom Bringers” in the Horn.

    A country about which the CIA says: Djibouti is a source, transit, and destination country for women and children trafficked for the purposes of sexual exploitation and possibly forced labor.


    alphie (99bc18)

  106. Wow.

    Time for a fourth verse (sung to the tune of Moonshadow)

    The thread’s been infested by a Staunch Brayer,
    Staunch Brayer, Staunch Brayer.
    Douchebaggery on display by a Staunch Brayer,
    Staunch Brayer, Staunch Brayer.

    Divorced from all reality
    As he wades though fantasy
    Divorced from all reality
    O wheo wheo wheo whe
    Ignorant like the troll he is.

    Paul (09c70a)

  107. Alphie, Press 1 for english.

    daleyrocks (906622)

  108. alphtard really went haywire, huh?

    JD (0b8ce0)

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