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As released, the OPR report is heavily redacted. No explanation is provided for the redactions, but the original contains a “top secret” classification, and it is likely that executive privilege, attorney-client privilege, and national security classifications figure in the decisions. Nevertheless, placement and circumstance suggest that a large number of redactions describe in detail meetings and discussions between the White House, the CIA, and the OLC lawyers working on the report.
Considering President Obama’s decision to terminate torture programs authorized by the OLC memos, all of which had already been rescinded before President Bush left office, it is not apparent how national security requires these communications to be kept secret. Far more likely, the redactions have been made to protect political figures at the White House and CIA, and potentially other agencies, from embarrassment. This is not a legitimate reason to black out the text.
A good example of potentially illegitimate redactions are those concerning repeated discussions about drafting the torture memoranda, which involve an unnamed OLC lawyer in addition to John Yoo and Jay Bybee. On p. 258, we learn that this lawyer “was a relatively inexperienced attorney when the Bybee and Yoo memos were being drafted. Although she appears to have made errors of research and analysis in drafting portions of the Bybee and Yoo memos, her work was subject to Yoo’s and Bybee’s review and approval. We therefore conclude that she should not be held professionally responsible for the incomplete and one-sided legal advice in the memoranda.” One woman working directly with John Yoo at OLC at this time was Jennifer Koester Hardy, now a partner in the Washington office of Kirkland & Ellis LLP. In an apparent redaction oversight, Hardy is mentioned by name in a footnote.
Why was Hardy’s name redacted? She played an obvious and important role in the production of the documents. She made serious errors, which appear to be driven less by flaws in research than by a desire to produce an opinion that had the conclusions that David Addington wanted. The failure to identify key precedents and the malicious misconstruction of precedent is as much her fault as that of Bybee and Yoo. Hardy is also an ideological fellow traveler of Yoo’s and Bybee’s. In the midst of her work at the Justice Department, she took time off to serve as a clerk for Justice Clarence Thomas, with whom John Yoo also clerked. Moreover, while she was clerking for Thomas, he authored opinions relating to detentions policy matters on which Hardy was plainly engaged at the Justice Department. Like Bybee, Yoo and Thomas, Hardy is also active in the Federalist Society. Finally, her connection with the law firm of Kirkland & Ellis is important for several reasons. Mark Filip, who worked aggressively to derail or block the OPR report, and whose highly partisan engagement on the matter is disclosed in several of the documents disclosed on Friday, departed the Justice Department to become Ms. Hardy’s partner at Kirkland. It’s certainly possible that he was engaged in discussions with Kirkland in late January 2009, when he issued his opinion about the OPR report. The Kirkland firm has emerged as a distinctly Republican powerhouse, heavily populated with the party’s neoconservative wing, such as Jay Lefkowitz, Ken Starr, John Bolton, and Michael Garcia.
So why would Hardy’s name be redacted? Disclosure of her name might get in the way of a future political appointment. It might also lead to a review by a local bar association of her involvement with the torture memos, something which Margolis is keen to obstruct.
More from Scott Horton:
Conversation — March 30, 2016, 3:44 pm
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.
Freddie Gray’s relatives arrived for the trial in the afternoon, after the prep-school kids had left. By their dress, they seemed to have just gotten off work in the medical and clerical fields. The family did not appear at ease in the courtroom. They winced and dropped their heads as William Porter and his fellow officer Zachary Novak testified to opening the doors of their police van last April and finding Freddie paralyzed, unresponsive, with mucus pooling at his mouth and nose. Four women and one man mournfully listened as the officers described needing to get gloves before they could touch him.
The first of six Baltimore police officers to be brought before the court for their treatment of Freddie Gray, a black twenty-five-year-old whose death in their custody was the immediate cause of the city’s uprising last spring, William Porter is young, black, and on trial. Here in this courtroom, in this city, in this nation, race and the future seem so intertwined as to be the same thing.
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The Playboy mansion in California was bought by the heir to the Twinkie fortune, and a New Mexico man set fire to his apartment to protest his neighbors’ loud lovemaking.
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“Matt was happy enough to sustain himself on the detritus of a world he saw as careening toward self-destruction, and equally happy to scam a government he despised. 'I’m glad everyone’s so wasteful,' he told me. 'It supports my lifestyle.'”