No Comment — February 22, 2010, 10:38 am

A Triumph for the DOJ Roach Motel

In a late Friday afternoon document dump, the Justice Department finally released a heavily redacted report addressing the ethical lapses of the torture lawyers: John Yoo, now a professor at the University of California at Berkeley; Jay Bybee, now a judge at the United States Court of Appeals for the Ninth Circuit; Steven G. Bradbury, now a partner at Dechert LLP; and others at the Office of Legal Counsel. The professional staff in the Office of Professional Responsibility, charged with reviewing OLC actions, concluded that Yoo and Bybee had engaged in serious professional misconduct and that their cases should be referred to appropriate state bar disciplinary organs for review and further action. In an unusual addendum, however, Associate Deputy Attorney General David Margolis overruled the OPR findings, concluding that the conduct of the OLC lawyers did not rise to the level of “professional misconduct.” Margolis argued that OPR had failed to elaborate clear standards against which the lawyers could be judged.

The Margolis addendum, by arguing essentially that nothing can be done, raises a critical question: Is the Justice Department any longer capable of policing itself? The question has little to do with the torture issue, important as that is, or with partisan politics in general. It is clear now that the OPR itself is totally dysfunctional. The institutional ethos is now simple: the client is the president, and the department should do what it takes to make the client happy. Lawyers who serve their client will be protected and exonerated, even if they commit serious crimes in the process. Lawyers who cross the client are in serious trouble, even if they have only acted because of ethics requirements.

This mindset has survived the recent transition. Consider, for instance, the much ballyhooed public-integrity prosecution of former Alaska Senator Ted Stevens, a Republican. A conviction was secured, but soon thereafter it became apparent that the prosecution team had committed public corruption crimes potentially more serious than those they had charged against Stevens. The prosecutors now face a criminal inquiry themselves—and none of this happened as a result of internal Justice Department ethics action. Indeed, the Justice Department reacted to repeated warnings and inquiries by Judge Emmett Sullivan by doing absolutely nothing.

Or consider the New Year’s eve decision by Judge Ricardo Urbina to dismiss the department’s highest profile prosecution of seven Blackwater guards in connection with the shooting of seventeen Iraqi civilians in 2007. In a 91-page-opinion, Urbina catalogued a pattern of outrageously abusive conduct by prosecutors.

Or the December 15 hearing in Santa Ana, California, in which Judge Cormac J. Carney acquitted a group of Broadcom executives. The judge proceeded to excoriate the prosecutors. They had pressured an innocent man to accept a guilty plea to help lay the foundations of their case, Carney charged. In a manner reminiscent of authoritarian societies, they had intimidated the thirteen-year-old son of one defendant in an effort to get him to provide evidence against his father. The Justice Department’s conduct had been “shameful and contrary to American values of decency and justice,” the judge said.

The cases of Don Siegelman, Paul Minor, Charles Walker, and others reflect still more egregious misconduct, often with a strong political element. These cases were not undertaken by out-of-control youngsters. They are among the highest profile cases in the department; they were under supervision at the highest levels. David Margolis himself repeatedly hovers in the background of these cases, saying that everything is just fine when ethics failings are spotlighted by outsiders. Margolis presents himself as an ethics expert. But his views are incomprehensible in terms of ethics. They are far better understood in terms of political convenience.

Boston NPR affiliate WBUR recently did a series of reports on the ethics implosion in the Justice Department. In the final episode, “The Judges’ Rebellion,” they reviewed how federal judges finally became so disgusted with the institutionalized misconduct and the Justice Department’s refusal to discipline misbehaving lawyers that they began disciplining the prosecutors themselves—taking the same approach adopted by Judge Sullivan in Washington.

Fordham law professor Bruce Green, a former federal prosecutor, recently provided the ABA Journal with a disturbing slogan for OPR. “I used to call it the Roach Motel of the Justice Department,” he said. “Cases check in, but they don’t check out.” A year after the arrival of a new president and a new attorney general, the roach motel remains in business.

Share
Single Page

More from Scott Horton:

Conversation August 5, 2016, 12:08 pm

Lincoln’s Party

Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

Get access to 165 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

January 2017

The Monument Wars

= Subscribers only.
Sign in here.
Subscribe here.

The Trouble with Defectors

= Subscribers only.
Sign in here.
Subscribe here.

Over the River

= Subscribers only.
Sign in here.
Subscribe here.

House Hunters Transnational

= Subscribers only.
Sign in here.
Subscribe here.

The Lords of Lambeau

= Subscribers only.
Sign in here.
Subscribe here.

A Window To The World

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Post
Illustration (detail) by Lincoln Agnew
Article
Over the River·

= Subscribers only.
Sign in here.
Subscribe here.

Ashley arrived for her prenatal appointment at Black Hills Obstetrics and Gynecology, in Rapid City, South Dakota, wearing a black zip-up hoodie and Converse sneakers.1 To explain her absence from work that morning — a Tuesday in April 2015 — she had told a co-worker that she was having “female issues.” She was twenty-five years old and eight weeks pregnant. She had been separated from her husband, with whom she had a five-year-old son, for the better part of a year. The guy who’d gotten her pregnant was someone she’d met at the gym, and he’d made it abundantly clear that he wanted nothing more to do with her. Ashley found herself hoping that the doctor would discover some kind of fetal defect, so that her decision would be easier. She glanced across the waiting room at a television playing a birth-control ad and laughed darkly. “Jesus, Lord, it would be so nice if someone just pushed me down a flight of stairs.”

In the exam room, she perched on the table with her feet crossed at the ankles, her blond hair brushing the back of her pink hospital gown. “I don’t know what’s available for me here,” she told her doctor, Katherine Degen, who sat facing her on a stool. “I figured nothing.”

 Some names and identifying details have been changed. 

“Big, fat zero, unfortunately,” Degen said, making a 0 with her fingers. The last doctor who provided abortions in Rapid City retired in 1986, three years before Ashley was born.

The baby was due in November, when Ashley, who was a nurse, hoped to be enrolled in a graduate program to become a nurse practitioner. Getting pregnant as a teenager had forced her to put that dream on hold, but she had thought that she was finally ready; she had even submitted her application shortly before the March 15 deadline. For the first time in her adult life, Ashley felt as if her plans were coming together. Then she missed her period.

It would be too difficult to attend school as a single mother of two, Ashley knew. She had made an appointment for three weeks from now at the nearest abortion clinic, in Billings, Montana, 318 miles away. But just a week and a half ago, her husband had said he wanted to get back together and offered to raise the child as his own. Was it a sign that she was meant to continue the pregnancy? As a rule, Ashley approached her problems with resolve. She was capable and tough; she liked shooting guns and lifting weights. She kept track of her stats and checked off her goals as she achieved them one by one. Yet the dilemma before her had shaken her confidence. She leaned back and turned to watch the ultrasound screen. The black-and-white image danced. A sharp, fast thumping emerged from the machine. As Degen removed the wand, Ashley wiped the corner of her eye.

Photograph (detail) by Brian Frank
Article
A Window To The World·

= Subscribers only.
Sign in here.
Subscribe here.

Ashley arrived for her prenatal appointment at Black Hills Obstetrics and Gynecology, in Rapid City, South Dakota, wearing a black zip-up hoodie and Converse sneakers.1 To explain her absence from work that morning — a Tuesday in April 2015 — she had told a co-worker that she was having “female issues.” She was twenty-five years old and eight weeks pregnant. She had been separated from her husband, with whom she had a five-year-old son, for the better part of a year. The guy who’d gotten her pregnant was someone she’d met at the gym, and he’d made it abundantly clear that he wanted nothing more to do with her. Ashley found herself hoping that the doctor would discover some kind of fetal defect, so that her decision would be easier. She glanced across the waiting room at a television playing a birth-control ad and laughed darkly. “Jesus, Lord, it would be so nice if someone just pushed me down a flight of stairs.”

In the exam room, she perched on the table with her feet crossed at the ankles, her blond hair brushing the back of her pink hospital gown. “I don’t know what’s available for me here,” she told her doctor, Katherine Degen, who sat facing her on a stool. “I figured nothing.”

 Some names and identifying details have been changed. 

“Big, fat zero, unfortunately,” Degen said, making a 0 with her fingers. The last doctor who provided abortions in Rapid City retired in 1986, three years before Ashley was born.

The baby was due in November, when Ashley, who was a nurse, hoped to be enrolled in a graduate program to become a nurse practitioner. Getting pregnant as a teenager had forced her to put that dream on hold, but she had thought that she was finally ready; she had even submitted her application shortly before the March 15 deadline. For the first time in her adult life, Ashley felt as if her plans were coming together. Then she missed her period.

It would be too difficult to attend school as a single mother of two, Ashley knew. She had made an appointment for three weeks from now at the nearest abortion clinic, in Billings, Montana, 318 miles away. But just a week and a half ago, her husband had said he wanted to get back together and offered to raise the child as his own. Was it a sign that she was meant to continue the pregnancy? As a rule, Ashley approached her problems with resolve. She was capable and tough; she liked shooting guns and lifting weights. She kept track of her stats and checked off her goals as she achieved them one by one. Yet the dilemma before her had shaken her confidence. She leaned back and turned to watch the ultrasound screen. The black-and-white image danced. A sharp, fast thumping emerged from the machine. As Degen removed the wand, Ashley wiped the corner of her eye.

Artwork by Imre Kinszki © Imre Kinszki Estate
Article
The Lords of Lambeau·

= Subscribers only.
Sign in here.
Subscribe here.

Ashley arrived for her prenatal appointment at Black Hills Obstetrics and Gynecology, in Rapid City, South Dakota, wearing a black zip-up hoodie and Converse sneakers.1 To explain her absence from work that morning — a Tuesday in April 2015 — she had told a co-worker that she was having “female issues.” She was twenty-five years old and eight weeks pregnant. She had been separated from her husband, with whom she had a five-year-old son, for the better part of a year. The guy who’d gotten her pregnant was someone she’d met at the gym, and he’d made it abundantly clear that he wanted nothing more to do with her. Ashley found herself hoping that the doctor would discover some kind of fetal defect, so that her decision would be easier. She glanced across the waiting room at a television playing a birth-control ad and laughed darkly. “Jesus, Lord, it would be so nice if someone just pushed me down a flight of stairs.”

In the exam room, she perched on the table with her feet crossed at the ankles, her blond hair brushing the back of her pink hospital gown. “I don’t know what’s available for me here,” she told her doctor, Katherine Degen, who sat facing her on a stool. “I figured nothing.”

 Some names and identifying details have been changed. 

“Big, fat zero, unfortunately,” Degen said, making a 0 with her fingers. The last doctor who provided abortions in Rapid City retired in 1986, three years before Ashley was born.

The baby was due in November, when Ashley, who was a nurse, hoped to be enrolled in a graduate program to become a nurse practitioner. Getting pregnant as a teenager had forced her to put that dream on hold, but she had thought that she was finally ready; she had even submitted her application shortly before the March 15 deadline. For the first time in her adult life, Ashley felt as if her plans were coming together. Then she missed her period.

It would be too difficult to attend school as a single mother of two, Ashley knew. She had made an appointment for three weeks from now at the nearest abortion clinic, in Billings, Montana, 318 miles away. But just a week and a half ago, her husband had said he wanted to get back together and offered to raise the child as his own. Was it a sign that she was meant to continue the pregnancy? As a rule, Ashley approached her problems with resolve. She was capable and tough; she liked shooting guns and lifting weights. She kept track of her stats and checked off her goals as she achieved them one by one. Yet the dilemma before her had shaken her confidence. She leaned back and turned to watch the ultrasound screen. The black-and-white image danced. A sharp, fast thumping emerged from the machine. As Degen removed the wand, Ashley wiped the corner of her eye.

Photograph (detail) by Balazs Gardi
Article
With Child·

= Subscribers only.
Sign in here.
Subscribe here.

"She glanced across the waiting room at a television playing a birth-control ad and laughed darkly. 'Jesus, Lord, it would be so nice if someone just pushed me down a flight of stairs.'"
Photograph (detail) by Lara Shipley

Price of ten pencils made from “recycled twigs,” from the Nature Company:

$39.50

A loggerhead turtle in a Kobe aquarium at last achieved swimming success with her twenty-seventh set of prosthetic fins. “When her children hatch,” said the aquarium’s director, “well, I just feel that would make all the trauma in her life worthwhile.”

In Colombia, U.N. delegates sent to serve as impartial observers of the peace process aimed at ending the half-century-long war between the FARC and the Colombian government were chastised after they were filmed dancing and getting drunk with FARC fighters at a New Year’s Eve party.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Who Goes Nazi?

= Subscribers only.
Sign in here.
Subscribe here.

By

"It is an interesting and somewhat macabre parlor game to play at a large gathering of one’s acquaintances: to speculate who in a showdown would go Nazi. By now, I think I know. I have gone through the experience many times—in Germany, in Austria, and in France. I have come to know the types: the born Nazis, the Nazis whom democracy itself has created, the certain-to-be fellow-travelers. And I also know those who never, under any conceivable circumstances, would become Nazis."

Subscribe Today