Tag Archives: Joshua L. Dratel

Terrorist Trials: A List of Convictions vs. an Analysis of Prosecutions

Our colleague Joshua Dratel compared the Department of Justice’s recent list of terrorism-related convictions to the Center on Law and Security’s eight-year study of terrorist trials.  While his affection for our work over the years may have colored the tone of his blog, the underlying if subtle implication that the government would be well served to keep a record with the details and nuances that the Center’s study has developed over the years seems worthy of mention. It is extraordinarily time consuming and demands continual rethinking, but, as with so many topics and projects the Center takes on, its premise is often that DoJ would be well served by an in-house think tank.  And an unabashed thanks to Joshua, of course. – Karen Greenberg

by Joshua L. Dratel

Late last month, the Department of Justice (“DoJ”) released a chart listing terrorism-related convictions obtained in federal court since September 11, 2001.  The chart was provided to Congress as part of the public relations struggle between DoJ, which has championed federal court prosecutions of terrorism suspects, including Khalid Sheikh Mohammed and others detained at Guantanamo Bay, and those who insist that military commissions are the only appropriate forum.

Publication of DoJ’s chart was accompanied by substantial press attention.  The gross numbers provided by the chart were indeed impressive:  the number of persons convicted comes to just over 400; of that number, 150 have been convicted of terrorism offenses, and, as the cover letter to the chart states, more than 240 have been convicted of other offenses “where the investigation involved an identified link to international terrorism.”   Twenty-five defendants have been sentenced to prison terms in excess of 20 years, and 12 have been sentenced to life imprisonment.

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DoJ’s Continued Reliance on Executive Deference Led to Defeat in Al-Haramain

by Joshua L. Dratel

Last Wednesday, federal District Judge Vaughn R. Walker granted Al-Haramain Islamic Foundation, a Saudi charity with a U.S. branch in Oregon, summary judgment against the U.S. government for violating the Foreign Intelligence Surveillance Act (“FISA”) by intercepting without a warrant telephone calls between Al-Haramain officials and their lawyers. Al-Haramain was designated a “specially designated national” by the U.S. government, leading to a freeze on its assets, and the Oregon branch has closed.

Judge Walker’s decision is not remarkable for its legal conclusion or reasoning.  In fact, as the written opinion makes clear, his prior legal rulings provided ample foreshadowing of his ultimate conclusion that the wiretapping of Al-Haramain officials was warrantless and in violation of FISA’s warrant requirements.

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Politics on the Mound

by Joshua L. Dratel

This Sunday night, the Yankees start the new season with a game against their archrivals, the Boston Red Sox. What does that have to do with law and security, you ask?  As it turns out, a lot more than you’d think.  For example, consider the past decade.  After three straight World Series victories from 1998-2000 (and four of five dating back to 1996), the Yankees did not triumph again until last year.  Was the drought attributable to competitive balance or development cycles of the various teams?  Hardly.  The Yankees’ 2001-2008 dry spell was more a subtle but profound protest against Bush-era policies. They may earn like Republicans, but their hearts belong to Democrats.

“Coincidence,” you say.  Uh-huh.  Well, try this one on:  The Yankees won eight World Series titles during the Kennedy, Carter, and Clinton administrations, and zilch combined during the Nixon, Reagan, and Bush presidencies.  And to demonstrate that the pattern is not partisan but policy-oriented, look at 1965.  So depressed about the escalation of the Vietnam War under President Johnson’s stewardship, the Yankees began a steep decline from which they emerged to a playoff berth only after Nixon’s resignation, and a championship only after Carter’s election.  As Casey Stengel liked to say, “You could look it up.”

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Don’t Drink from the “Poisoned Chalice”

by Joshua L. Dratel

Attorney General Eric H. Holder’s response to Republican Congressmen John Culberson’s (R.-Tex.) incredulity at the prospect of affording Osama bin Laden constitutional rights was as weak as it was disappointing. Testifying last Tuesday before a House Appropriations subcommittee, Holder attempted to dodge the question of what would happen to bin Laden if he were taken into U.S. custody, replying that “You’re talking about a hypothetical that will never occur. The reality is that we will reading Miranda rights to the corpse of Osama bin Laden. He will never appear in an American courtroom.”

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Getting Rid of Lawyers Is a Step Towards Getting Rid of Law

by Joshua L. Dratel

Liz Cheney and her colleagues at Keep America Scared just don’t get it.  Instead of embarking on a multifaceted, coordinated, and orchestrated campaign excoriating lawyers who have represented Guantanamo Bay detainees and others facing terrorism charges, she should be thanking them.  For those lawyers saved people like her daddy from themselves.  Without those lawyers to apply the brakes to the Bush-Cheney program, who knows what would have ensued?

Perhaps John Yoo would have been writing legal memos providing a post hoc rationalization for the massacre of towns like Amherst, Massachusetts, which offered to house the Uighurs whom the courts ordered released from Guantanamo, but for whom the U.S. could not find a home abroad.

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Thomas Joscelyn’s Start as an Intel Analyst

by Joshua L. Dratel

The co-author of Monday’s WSJ op-ed piece with Debra Burlingame was Thomas Joscelyn, who testified before Congress on July 8, 2009, and was grilled by certain Democrats, including William Delahunt.  Joscelyn conceded (a) that he’s not a lawyer;  and (b) that he does not have any professional background in intelligence or law enforcement.  He also made the following remarkable admission in an exchange with Delahunt:

Mr. Delahunt:         How did you come to become an intel agent?

Mr. Joscelyn:         Well, I’m not an intel agent,  I’m an intel analyst.

Mr. Delahunt:        I mean, an intel analyst, right.

Mr. Joscelyn:         It was an entrepreneurial endeavor after 9/11 that I started.

Therein, perhaps, lies the true face of the opposition?

copyright © 2010 by Joshua L. Dratel

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When Is Violence “Terrorism”?

by Joshua L. Dratel

Do the murders committed by Maj. Nidal Malik Hasan at Fort Hood constitute an act of terrorism?

This question has clearly been a source of controversy and conflict among journalists, academics, and current and former government officials.  As Nancy Gibbs framed the divergent views in Time.com, “The massacre at Fort Hood was, depending on whom you believed, yet another horrific workplace shooting by a nutcase who suddenly snapped, or it was an intimate act of war . . .  In their first response, officials betrayed an eagerness to assume it was the first; the more we learn, the more we have cause to fear it was the second….”

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TTRC in the news

The New York Law Journal discusses the debate over how KSM and the other alleged 9/11 plotters should be prosecuted, while Joshua Dratel and Lt. Col. Darrel Vandeveld argue against military commissions in Salon.

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“Poor Judgment” Is a Shifting Standard

by Joshua L. Dratel

David Margolis, associate deputy attorney general, has cancelled any referral of former Department of Justice lawyers John Yoo and Jay Bybee for hearings by the relevant state attorney ethics panels. In so doing, he has reversed the recommendation of a report by DoJ’s Office of Professional Responsibility, which examined the drafting of the Office of Legal Counsel’s “torture memos.”

Margolis attributes Yoo and Bybee’s failings to “poor judgment,” and finds referral inappropriate in part because Yoo so fervently believed his position was correct. Of course, the same could be said of those who wrote the Nuremberg laws, or Jim Crow legislation. Surely they believed unreservedly in the legality of the product of their efforts. “Poor judgment” of that magnitude attains an entirely different character, and believing in that type of cause makes the conduct more, not less, dangerous (even if not actionable under disciplinary rules). And belief, no matter how resolute, in a position contrary to law is not an excuse for breaking it.

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A Punishment for Authorizing Torture

by Joshua L. Dratel

I met H. Marshall Jarrett once, at an American Bar Association ethics conference in Vancouver, B.C., in 2006. He had been on a panel that afternoon, and the authenticity of his integrity impressed me. I had not heard of him before that, although he had been counsel to the Department of Justice’s Office of Professional Responsibility (“OPR”) for some time (and remained in that position until recently). Later, we were both among a large party that had dinner together that evening. We sat roughly across from each other, and I was curious whether what had impressed from afar would hold up at dinner at close range. It did.

As a result of that encounter, and Jarrett’s continued stewardship of OPR even through DoJ’s darkest days, I always retained a kernel of hope that an OPR investigation of the conduct of lawyers at DoJ’s Office of Legal Counsel who authored the infamous “torture memos” would be independent, forthright, and unvarnished. OPR, and H. Marshall Jarrett, did not disappoint. OPR’s 261-page report, entitled “Investigation Into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence Agency’s Use of ‘Enhanced Interrogation Techniques’ on Suspected Terrorists,” is scathing in its simple recounting of what occurred, as well as in its subjects’ recollections, or sometimes lack thereof, and rationalizations for their inexcusable failure to fulfill their oath to uphold the U.S. Constitution.

The subsequent 69-page review by David Margolis, associate deputy attorney general, which canceled any referral of John Yoo and Jay Bybee for attorney discipline, cannot alter the facts recited in OPR’s report and cannot mitigate the moral judgment on those involved in this shameful chapter in U.S. legal history. I confess that I am not in favor of expanding criminal liability for lawyers or anyone else based on bad advice or incompetence. I agree with Margolis that “all flaws do not constitute professional misconduct.”

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