Bush Justice Department Goes After Another Democratic Lawyer (And Why This is Bad News for Yoo and Bradbury)

It’s beginning to sound like a stuck record. Another strike by the Bush Justice Department, keeping the country safe. Who’s the target this time? A crack dealer? An al Qaeda terrorist? No. It’s a wing-tip shoed Miami lawyer, who served as president of the bar association, is held in universally high esteem (outside, of course, of the political hacks who run the Bush Justice Department) and who advised Al Gore in the 2000 Florida recount battle. According to the Justice Department, the lawyer’s involvement with Democratic politics has nothing to do with his being charged. Quite a few of his contemporaries are having problems buying that, and still bigger problems understanding his supposed “crime.”

Here’s the way the Miami Herald broke the story on Thursday:

Ben Kuehne, a widely respected Miami lawyer whose clients have included former Vice President Al Gore and other major politicians, surrendered Thursday on federal criminal charges for his behind-the-scenes role in a complex international drug-trafficking case. An indictment, unsealed at his morning court appearance, charges Kuehne in a money-laundering conspiracy with approving tainted legal payments by an accused Colombian drug kingpin to his defense attorney in Miami.

The fee payments turned out to be illegitimate because they allegedly came from drug proceeds in violation of federal law, federal prosecutors said. Kuehne, appearing in Miami federal court at 10 a.m., said: “Since I am completely innocent of these charges, I am entering a plea of not guilty. . .”

Justice Department officials allege that Kuehne broke the law in 2002-03 when he vouched for millions paid by one-time Medellín drug lord Fabio Ochoa Vasquez to his high-profile trial attorney, Roy Black. Kuehne’s research gave Black the confidence — in the form of legal opinion letters — to accept payments totaling $3.7 million in fees and $1.3 million in expenses from Ochoa, according to several sources. Kuehne earned a portion of the expense payments — $220,000 to $260,000 — from Black for vetting Ochoa’s payments. The payments were documented to a specific commercial operation and holding long in the hands of the Ochoa family: a horse and cattle farm in Colombia.

The Herald is giving its reporting a good bit of Justice Department spin. What exactly is Kuehne’s involvement in this “conspiracy”? He was asked by another lawyer to give an opinion: did he think the retainer that was offered by a client could be accepted? He looked at the money and its provenance and gave a positive opinion. But according to the indictment, he went beyond the opinion by receiving and passing on a series of retainer payments.

Some other facts make the Justice Department’s conduct look stranger still. The matter was not determined by local attorneys in the Miami U.S. Attorney’s office, but by political appointees from main Justice in Washington. Law.com collects a number of statements from leaders in the Florida bar, reacting angrily to the charges, including Kuehne’s lawyer:

“This highly improbable charge involves important and unprecedented issues of law, policy and procedure,” Moscowitz wrote. The indictment was brought by Assistant U.S. Attorneys John Seller and Thomas Pinder of the Justice Department’s asset forfeiture and money laundering section in Washington. The case went to Washington because the U.S. Attorney’s office in Miami had a conflict as Ochoa’s prosecutor. Magistrate Brown’s courtroom overflowed with attorneys who support Kuehne. They included CNN legal commentator Jayne Weintraub and criminal defense attorney Frank Quintero Jr., who won a hard-fought acquittal on drug-smuggling conspiracy and laundering charges. Others waited outside because the courtroom was too small for everyone who wanted to attend. Leaving court, Kuehne was upbeat and thanked everyone for their support. “Ben Kuehne has more integrity than any lawyer I know,” Weintraub said. The prosecution is “an indictment on the legal profession.”

Other lawyers angrily denounced the charges.”It’s now official: It’s a crime to be a criminal defense attorney,” Miami criminal defense attorney Milton Hirsch said. Referring to Kuehne’s courtly, buttoned-down demeanor, he said, “They picked a guy who sleeps with wing-tipped shoes on and indicted him for going above and beyond to make sure legal fees paid to a different lawyer are clean.”

In sum, the prosecutors are saying that by rendering a legal opinion, Kuehne made himself into a part of a conspiracy. So whether his opinion was right or wrong, he was just another cog in a criminal enterprise. They’re arguing that he cannot claim an innocent mistake as to the law or the facts as a defense. The Government will get its chance to prove its claims and Kuehne will get to defend against them in a court room.

But the Government’s claims spell real trouble, and indeed possible prison time, for some senior people at the Department of Justice. Just this week, Michael Mukasey appeared before the House Judiciary Committee and said that federal agents were absolutely entitled to rely on his opinions, or the opinions rendered by his two predecessors, concerning torture techniques. He testily told Chairman Conyers that he refused to authorize an investigation into the torture or mistreatment of prisoners pursuant to approved torture techniques, because torture that was approved could not be investigated or charged. It all rested on the opinions issued by the Office of Legal Counsel. And he refused to disclose those opinions, although he said he agreed with them.

But I for one do not believe Mukasey. His statements on the law are clearly erroneous. In fact, Mukasey is too smart to actually believe the absurdities he uttered under oath before Congress. He is dissembling for a political reason—to provide cover for a series of criminal acts by cloaking them with the protective embrace of an attorney’s opinion. And that’s precisely what Mukasey’s own team are charging is a crime when done by Kuehne.

Now if the prosecutors charging Kuehne are correct, then John Yoo and Steven Bradbury ought to be very worried. Each of them issued legal opinions at the Office of Legal Counsel crafted for the purpose of sanctioning the torture of human beings who have not been charged with any wrongdoing. They appear to have embraced a series of specific torture techniques, including

• Waterboarding
• Hypothermia
• Long-time standing
• Sleep deprivation in excess of 48 hours
• The use of psychotropic drugs
• The sensory deprivation- and overload program (“Kubark”)

The first four of these techniques were labeled as “torture” by all modern American administrations up to the arrival of George W. Bush. Each is a violation of multiple federal criminal laws, starting with the Anti-Torture Act and the War Crimes Act, and no serious issue exists on that point. In fact, the Judge Advocates General of each of the uniformed services testified to that effect before Congress, citing the existing statutory and case precedent. (Apparently, OLC hasn’t been paying its LEXIS bills, since it doesn’t seem to be able to locate the law, the treaties or the prior cases. That, unfortunately, won’t figure as much of a defense).

So if we apply the reasoning the Justice Department advances in the Kuehne case, Yoo and Bradbury are engaged in a criminal conspiracy to subvert the law and may be chargeable in connection with the underlying crimes. And indeed, while Michael Mukasey certainly won’t charge these cases, the Attorney General he cited to the Judiciary Committee as his personal model, Robert H. Jackson, absolutely would. In fact, we can cut from the speculative: he did. The case is called United States v. Altstoetter and the defendants in that case include two officials of the Justice Department who gave erroneous advice under international humanitarian law which led to more than a thousand persons being tortured or shot. The sentence? Ten years, less time served. And in fact the lawyers got off lightly–they were released after seven years for good behavior.

There is also a material difference between the Kuehne case and the future charges against Yoo and Bradbury. The Kuehne case looks very much like a cheap political stunt; payback for another lawyer who tried to stand in the way of Bush’s march to power. The Yoo and Bradbury cases will be deadly serious. Moreover, bringing them will be the cost of our nation’s restoring the world’s faith once more to the pledge that Robert Jackson gave in 1945. “To pass these defendants a poisoned chalice is to put it to our own lips as well,” he said—he was talking about a commitment to abide by the rules of international humanitarian law which the United States largely wrote. Jackson left the nation a great and noble legacy. And the Justice Department today is a blight in the face of it.