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Could Attorneys Go to Jail for Letter to Obama?

The San Francisco Chronicle reports that two attorneys for former Gitmo detainee Binyam Mohamed face sanction for sending a letter to President Obama asking seeking government disclosure of information related to Mohamed's treatment. Mohamed claims he was subject to extraordinary rendition that resulted in torture, but government information to substantiate this claim is classified. In an effort to get this information released, Mohamed's attorneys sent a letter to President Obama that contained classified material, in violation of the terms upon which the attorneys were given access to their client and related government information. The two attorneys apparently sought approval for the content of the letter, but there is a factual dispute over how they proceeded and whether the relevant government officials approved the letter's compliance with secrecy rules. At a May hearing, federal district court judge Thomas Hogan will determine whether to hold the attorneys in contempt of court for their actions. Even if Judge Hogan determines the attorneys violated their agreement, based upon the information in the Chronicle story, I would be surprised (and dismayed) if the attorneys received any jail time.

Gabriel McCall (mail):
How much of a crime can it be to divulge classified material to someone who is authorized to see it? One has to think that the POTUS is cleared for, well, everything.
4.21.2009 9:58am
U.Va. Grad:
One has to think that the POTUS is cleared for, well, everything.

Only the Secretary of Defense is cleared to know about Area 51. (I saw it in Independence Day; it must be true!)
4.21.2009 10:06am
Soronel Haetir (mail):
Sure, POTUS is cleared for everything, but what about the mail room clerk? The WH has to get enough random crap on all sorts of topics that I have a hard time believing that all the mail handlers are cleared to see all the governments secrets.

And I doubt there is a way to mark a letter so that it is delivered directly to the president without anyone else inspecting it.
4.21.2009 10:10am
Steve:
The attorneys claim that they wanted to send the classified memo to Obama, but every time they asked, the Pentagon redacted the entire contents of the memo. So they went ahead and sent the blacked-out memo to Obama to demonstrate how ridiculous the Pentagon was being.

The government disputes these facts and claims that, among other things, the lawyers said they were only going to provide the blacked-out document to their client and not to Obama. If anything, that seems to make the problem worse. How the heck can the government claim that it's ok to show a given document to the defendant, but not ok to show it to the President? Never mind that the "document" in this case is entirely blacked-out and contains no content whatsoever.

That said, if the letter of the Court's order purports to prohibit the lawyers from sending anything to the President without permission, I guess they can be held in contempt, but it's hard to see how a court can constitutionally restrict the lawyers from disseminating classified information to someone who is authorized to receive it. Seems like the government is just angry because the absurdity of their review procedures has been made public.
4.21.2009 10:10am
martinned (mail) (www):
@Gabriel McCall: I suspect it's not the recipient they're worried about in this case.
4.21.2009 10:11am
Bored Lawyer:
Since any sanctions here would be punitive, and the contempt was not committed in front of the Court, then we are talking about criminal contempt, not civil contempt.

Doesn't this mean that the right to a jury trial attaches/
4.21.2009 10:11am
PubliusFL:
Soronel: Sure, POTUS is cleared for everything, but what about the mail room clerk? The WH has to get enough random crap on all sorts of topics that I have a hard time believing that all the mail handlers are cleared to see all the governments secrets.

Exactly. You DON'T just stuff classified documents in an envelope and drop it in a mailbox, even if the addressee is cleared for the information.
4.21.2009 10:21am
Oren:

Never mind that the "document" in this case is entirely blacked-out and contains no content whatsoever.

Who said that a document with no content can't be classified?
4.21.2009 10:22am
Steve:
I'm not sure who said it. But the point is the absurdity of it all.
4.21.2009 10:28am
The Unbeliever:
I'm not sure who said it. But the point is the absurdity of it all.
This sounds like an invitation to bring up all the examples of (completely legal) absurdities comitted by the government.
4.21.2009 10:33am
cboldt (mail):
The article is confusing to me. At any rate, the issue is public disclosure, rather than intending the material to be limited to Mr. Obama's eyes: "Shortly afterward, Smith and Ghappour sent the letter and a blacked-out sheet to the president and released them to the media."
4.21.2009 10:35am
cboldt (mail):
Reading and thinking a bit more, the article does not say there is an allegation of disclosure of classified information. The allegation is "breach of agreement." The lawyers agreed to certain terms in order to obtain access to the defendants. Analysis of the kerfuffle involves the access agreement. The "secrecy rule" here may be secrecy on matters other than classified information. "Thou shalt not make fools of any government actor, or the trial process."
4.21.2009 10:50am
Steve:
I wouldn't really call it an "agreement" if it's the only way the lawyers can get access to their clients.

It seems intuitive to me that national security restrictions of this type need to be narrowly tailored to accomplish their objectives.

At any rate, my point above was simply that I don't see how the factual dispute identified by the government even works in their favor.
4.21.2009 10:53am
Brennan:
Seems to me like a pretty unreasonable level of interference with the First Amendment right to petition. Low-level executive-branch bureaucrats should not be able to frustrate effective petitions to their own superiors.

These lawyers had authorized access to this information and were trying to exercise an explicitly-granted constitutional right. Given those facts, if the censoring bureaucrats had genuine security concerns about the material, I would think that the burden should on the censors to offer a secure transmittal method that would not require any censorship.
4.21.2009 10:53am
martinned (mail) (www):

Given those facts, if the censoring bureaucrats had genuine security concerns about the material, I would think that the burden should on the censors to offer a secure transmittal method that would not require any censorship.

It seems to me that part of the dispute is about whether those "bureaucrats" actually had the opportunity to do this, or whether these lawyers simply sent the letter without first getting in touch with the relevant government officials about what would or would not be an acceptable way to send such a letter.
4.21.2009 11:01am
Oren:

Seems to me like a pretty unreasonable level of interference with the First Amendment right to petition. Low-level executive-branch bureaucrats should not be able to frustrate effective petitions to their own superiors.

If the petitioners agreed to a set of constraints, they should abide by them.
4.21.2009 11:14am
Adam J:
Oren- The government has a ludicriously advantagous bargaining position to force the petitioner to agree to said restraints- you think its appropriate for them to use that position to frustrate petitions to the President? That's giving the government a whole lotta power to eliminate accountability if you can't contact the only elected executive govermental official.
4.21.2009 11:25am
Houston Lawyer:
They should have just had Sandy Berger deliver the letter.
4.21.2009 11:50am
rosetta's stones:
Interesting.

The Brit lawyers aren't playing nice, obviously, so that judge is gonna haul them in for a good scolding. Dang furreners.... who do they think they are? This is MY court here.

Notice the Obama administration pushed for the suit to be dismissed. I guess they don't want details of Bush's Obama's coercive interrogation policy to get out.
4.21.2009 12:05pm
Richard Aubrey (mail):
Things like this encourage me to the position that you can trust lawyers with classified materials in trials of terrorists and other bad types.
This is a bad move for the Brotherhood. You should only shoot your credibility in the ass with a huge cannon when it's worth it.
This was small beer and will provide a precedent for withholding some really good stuff defense attorneys want to send to the Taliban. Really, really good stuff, and these clowns wasted the opportunity.
4.21.2009 12:30pm
Eli Rabett (www):
It's not clear that the "blacked out letter" sent to the President was the "blacked out letter" sent to the lawyers.
4.21.2009 1:06pm
ohwilleke:
Can Obama pardon an alleged criminal contempt? It would cut through the mess quickly and come across as magnamonious.
4.21.2009 1:35pm
Rich Rostrom (mail):
Shouldn't the first sentence read "sending a letter containing classified material in violation..."?

As phrased, the implication is that the attorneys are being charged because the letter was addressed to Obama, regardless of its content.

In fact, the charge is based on the content of the letter, and the addressee is an irrelevant (though sensational) detail.
4.21.2009 1:42pm
Bill Poser (mail) (www):

If the petitioners agreed to a set of constraints, they should abide by them.

No, they shouldn't if the agreement was made under duress and in violation of their client's rights.
4.21.2009 1:42pm
Crust (mail):
Greenwald had much more on this two weeks back. You can see the redacted memo sent to Obama here. It is completely redacted except for the "From", "Re" and "Date" fields.

Adler is mistaken when he writes that:

Mohamed's attorneys sent a letter to President Obama that contained classified material.
Unbelievable as it may sound, they may be prosecuted for sending Obama the redacted memo together with a cover letter that accused the review team of concealing information from the president.
4.21.2009 1:57pm
Crust (mail):
Richard Aubrey:
This was small beer and will provide a precedent for withholding some really good stuff defense attorneys want to send to the Taliban.
Note that Mohamed's attorneys did not send any classified information to Obama (or the Taliban or anyone else except the review team). They sent Obama the redacted version of the memo that the review team had stamped "UNCLASSIFIED".
4.21.2009 2:02pm
Crust (mail):
cboldt:

Reading and thinking a bit more, the article does not say there is an allegation of disclosure of classified information. The allegation is "breach of agreement." The lawyers agreed to certain terms in order to obtain access to the defendants. Analysis of the kerfuffle involves the access agreement. The "secrecy rule" here may be secrecy on matters other than classified information. "Thou shalt not make fools of any government actor, or the trial process."
Exactly.
4.21.2009 2:05pm
Crust (mail):
Oren:
Who said that a document with no content can't be classified?
Does the fact that the document is stamped "UNCLASSIFIED" in all-caps on each page make a difference? Face it, the government is not alleging that the lawyers disseminated classified information.
4.21.2009 2:13pm
TNeloms:
I'm sorry to ask this off-topic question here, but can someone direct me to the law that allows the prosecution of lawyers giving faulty legal advice on torture? I'm not a lawyer, and I'm trying to find it but am having no luck.
4.21.2009 2:17pm
Arkady:
Hmmm. The redacted document reminds me of the picture of the polar bear in the blizzard, which can be seen directly below.














4.21.2009 2:32pm
cboldt (mail):
-- can someone direct me to the law that allows the prosecution of lawyers giving faulty legal advice on torture? --
.
Not saying it's a strong (or even reasonable) hook, but conspiracy to commit is one: 18 USC 2340A(c).
.
"Conspiracy to commit" also appears under 18 USC 2441: War Crimes. The "War Crimes" section contains infractions beyond "torture."
4.21.2009 2:57pm
The Original TS (mail):

I'm sorry to ask this off-topic question here, but can someone direct me to the law that allows the prosecution of lawyers giving faulty legal advice on torture? I'm not a lawyer, and I'm trying to find it but am having no luck.


I know this is off-topic but I AM a lawyer and I have exactly the same question. I cannot think of a single theory that would allow criminal prosecution for giving bad advice. Mafia lawyers have been prosecuted in the past but AFAIK, they have been prosecuted for actually doing things, not just giving advice. Once again, AFAIK, none of these lawyers actually implemented any of these policies, they just wrote a memo providing a legal opinion.

Certainly the government can bring a malpractice claim. There may even be ethical charges that could be brought by a state bar. But criminal liability for bad legal advice? Talk about a horrible precedent.

Jonathan, could you write something about what legal theories might be used to prosecute these attorneys?
4.21.2009 3:05pm
wfjag:

Notice the Obama administration pushed for the suit to be dismissed. I guess they don't want details of Bush's Obama's coercive interrogation policy to get out.

See article in April 21, 2009 L.A. Times:
Obama remarks on torture memos leave open possibility of prosecution
The president opposes prosecution of CIA operatives, but high-level officials who authorized the actions may not be immune.
By Mark Silva
11:52 AM PDT, April 21, 2009

Guess we might find out if there can be criminal prosecution for giving or relying on what is considered, post hoc by the other party, to be "bad legal advice."

Then, I guess we'll see whether the state secrets doctrine protects against disclosure the memos that the former V.P. says that he say that concluded that the enhanced interrogation methods were effective and thwarted other terrorist attacks.
4.21.2009 3:15pm
Richard Aubrey (mail):
crust.
See my post: It says this gives cover for withholding from defense attorneys who want to get the really good stuff to give to the Taliban or other bad guys.
Wasted such an opportunity for THIS? Bad planning, guys. Bad planning.
4.21.2009 4:14pm
ohwilleke:
The addressee matters a great deal. Domestic mail is entitled to the highest expectation of privacy and cannot be lawfully opened without a warrant. It is safer from a privacy/confentiality perspective than e-mail, telephone or lots of other means of communications. Better practice would be to put "National Security Secret Material" on the envelope despite the fact that this may produce anthrax measures.

If the addressee is cleared to receive confidential information, and there is a constitutional right to petition, a court imposed limitation is rightfully questioned as either ultra vires or to be construed to implicitly contain an exception for this case. Cf. cases that have held that a secret national security letter can be shared with counsel for the person receiving it without an express exception to the crime of disclosing a national security letter.
4.21.2009 5:43pm
PLR:
I'm sorry to ask this off-topic question here, but can someone direct me to the law that allows the prosecution of lawyers giving faulty legal advice on torture? I'm not a lawyer, and I'm trying to find it but am having no luck.
Thankfully there have been few lawyers pre-W willing to give such advice.

People generally cite U.S. v. Alstoetter as authority for prosecuting lawyers. It is also worth noting that we lack full information about the relationship between the CIA, on the one hand, and the OLC members on the other. That lack of full information prevents us from comparing the actions here to the actions in Alstoetter.
4.21.2009 5:51pm
Oren:


No, they shouldn't if the agreement was made under duress and in violation of their client's rights.


The proper response is to petition the judge for an injunction releasing them from the components of the agreement that violate their client's rights. He has broad powers to remedy these sorts of things.
4.21.2009 7:32pm
David Schwartz (mail):
Certainly the government can bring a malpractice claim. There may even be ethical charges that could be brought by a state bar. But criminal liability for bad legal advice? Talk about a horrible precedent.
The classic example would be the guy who goes to a lawyer and says, "I don't want to file my taxes, but if I'm charged with a crime, I need to argue that I had a good faith belief that I'm not required to file them. Give me a legal opinion saying I don't have to file from which I can form such a belief."
4.21.2009 8:31pm
The Original TS (mail):

People generally cite U.S. v. Alstoetter as authority for prosecuting lawyers.


Nuremburg isn't quite the sort of precedent I had in mind.


The classic example would be the guy who goes to a lawyer and says, "I don't want to file my taxes, but if I'm charged with a crime, I need to argue that I had a good faith belief that I'm not required to file them. Give me a legal opinion saying I don't have to file from which I can form such a belief."


But that gets right to the heart of it. You can't criminally prosecute a lawyer for giving that advice to a client. You can't even criminally prosecute a lawyer if he writes a book and goes on talk radio giving that advice. He might be subject to disbarment, but he can't be prosecuted.

There is an unspoken assumption in all this that arguments made by lawyers are somehow imbued with magic powers. They're not. They're just arguments. They stand or fall on their own merits. If the arguments made by Yoo and company were so patently ridiculous and so beyond the pale of acceptable reasoning as to (theoretically) warrant prosecution, then they were too patently ridiculous and beyond the pale of legal reasoning for anyone to rely on in good faith. By contrast, if they were colorable arguments, such that they could have been relied on in good faith well, you can't prosecute lawyers just because their reasoning turns out to be wrong. You can't even prosecute lawyers because they make legal arguments that they, themselves, don't completely buy. It's pretty much a lawyer's job to put the best face possible on the client's position.

For example, suppose Yoo's memo had consisted, in its entirety, of the following text:

Bush is great. Bush is good. Let us thank him for our food. Bush is the second coming. His is the kindgom, the power and the glory. Everything he wants to do is legal, just and holy. Bush wants to waterboard. We find that it is good. So let it be written. So let it be done.


Now, of course, no one could form a good faith belief based on this memo, except, possibly a good faith belief that Yoo was completely insane. Yoo being a lawyer doesn't enter into it. It is gibberish, both legal and otherwise.

But this is pretty analogous to the memo Yoo did write. Moreover, lots of other attorneys said so at the time. IIRC, some of them even quit over it. So no one in the administration was "fooled" by Yoo's memo. They believed it because they wanted to believe it.

Suppose that, instead of writing a classified memo, Yoo had published his opinion in a law journal. The legal community has a good laugh but the administration loves it and decides to adopt the analysis as official policy. Would Yoo be liable then? If not, why not?
4.21.2009 10:15pm
Eli Rabett (www):
You (ok maybe you are not the IRS) sure can prosecute lawyers for providing really bad tax letters. Next
4.22.2009 12:53am
TruePath (mail) (www):
Hmm, I wonder if this would end up implicating the right to petition the government for redress of greviences.

After all the claim by the government is not that the lawyers violated any rule about classified material but rather that some kind of court/government mandated agreement barred them from doing so. However, I wonder if such a condition would not itself be invalid as an abrogation of the aforementioned right.

Of course if the lawyers are not US citizens it gets even more confusing.
4.22.2009 4:02am
TruePath (mail) (www):
As far as lawyers and legal opinions one needs to distingush several considerations.

Yes, it would be an awful precedent to set if lawyers could be prosecuted for expressing that "such and such" is a legal argument that one could make or even that it's a legal argument that they think ought to be persuasive to the courts. Such situations only reflect the lawyer's personal opinion that may be informed by time spend in law school.

On the other hand lawyers are also professionals whose assertions about the law can be relied on by non-experts. There is nothing more troubling about prosecuting a lawyer for giving fraudulent or even negligent advice about the practical state of the law. A lawyer who provides you with an opinion on a tax matter is not merely expressing *his* view on how the law should be interpreted but is offering an expert opinion as to the practical state of the discipline which people will legally rely upon.

I mean it's no different than with doctors. No doctor should be prosecuted for telling you his personal view is that homeopathy is a better approach for this ailment if he also makes it clear that the accepted standard of medical care is something much different and offers no misleading summary of the evidence. On the other hand if you walk into the doctor's office and instead of offering the accepted standard of care for cancer sends you home with some homeopathic remedy he certainly should be prosecuted.

I'm sure someone here knows what the precisce laws on point say but the above justifies why it is a reasonable precedent.
4.22.2009 4:13am
Richard Aubrey (mail):
Suppose we had a different subject, one not susceptible of use for getting Bush admin officials.
Forget it.
No, let's keep going.
An admin attorney gives a legal opinion. In the fullness of time, we discover a catastrophe can be laid at the feet of the people who relied on the opinion. And, thus, to the origin of the opinion.
What would be differentiate the Bush/torture issue from some other issue?
If it is reasonable to presume that the opinions about torture could lead to abuse and thus the originator of the opinion deserves sanctions, then that leaves us with an interesting precedent. What if a legal opinion leads the admin to, say, restrict a certain pesticide. And we have an outbreak of something with a dramatic name--breakbone fever as dengue fever used to be called--which kills some of the elderly, weak, and young. And it could have been, should have been obvious that this is one possible and even likely result.
Does the originator of the opinion need to lawyer up because some folks are coming for him on a criminal charge?
4.22.2009 9:49am
Eli Rabett (www):
Richard Aubrey appears to believe that lawyers are not responsible for the results of their actions, even when they were told what their opinion should be and why it was asked for. How Wehner von Braun
4.22.2009 10:06am
Adam J:
Oren- Being a bit of a stickler for process aren't we? Procedural hurdles can be used just as effectively to stop this petition (and according the the lawyers have been used in this fashion). A right to petition the President regarding government action is pretty important, one might say integral to democracy. Preventing this right brings our government one step closer to tyranny.
4.22.2009 10:43am
The Original TS (mail):
I have heard of lawyer being prosecuted by the tax authorities, but, AFAIK, it wasn't just for advice. There was other conduct, like selling tax shelters, involved. I'm even willing to concede that, in some cases, there could be a criminal action for fraud based on legal advice if all the elements are met, e.g. if a lawyer were to give intentionally wrong advice in an attempt to trick the client into doing something. That may well have been an element in the tax cases. I don't know.

But this couldn't have been the case with the "torture memo." There was no fraud involved. The government knew perfectly well what the main-stream legal opinion was regarding its positions.


On the other hand lawyers are also professionals whose assertions about the law can be relied on by non-experts.


I know Alberto Gonzales was no great prize but this seems a little harsh!

The narrow point is that Yoo's memos weren't relied on by some retiree wanting to invest his 401K in a tax shelter. They were "relied on" by the Bush administration which includes the Justice Department.


On the other hand if you walk into the doctor's office and instead of offering the accepted standard of care for cancer sends you home with some homeopathic remedy he certainly should be prosecuted.


I don't know so much. There have been numerous cases involving attempts to prosecute or restrict medical advice that have turned on first amendment concerns. Once again, you have to differentiate between fact patterns. If the Dr. gives intentionally bad medical advice, that may well be fraud or worse. If the patient demands a particular treatment -- especially if the patient knows it's controversial -- it's not.

The torture memos are more logically akin to a patient coming to a Dr. and demanding unusual and potentially hazardous cosmetic surgery. If the patient comes to a doctor insisting that his legs are too long and that the doctor shorten them by 18 inches, the doctor may well be subject to ethical proceedings but criminal prosecution won't attach, at least not based on giving advice as to how such a procedure might be done.

I really hope Eugene or someone will pick up this topic as I'd really like to see their analysis.
4.22.2009 1:09pm
Richard Aubrey (mail):
Eli. Missed again.
I'm asking about lawyers being responsible for the results of their advice. In a case other than one ginned up for going after Bush admin folks.
I can see why you'd want to misrepresent my point. Really, really bad precedent there.
Instead of bankrupting Republican folks as a punishment for working in a republican admin, we could be bankrupting folks for practically any statement which is relied upon and has bad results. Even if the shylock in question is not working for a republican admin.
Wow. Don't want to go there.
4.23.2009 10:32am
einhverfr (mail) (www):
The question of prosecuting the OLC lawyers in this usually focuses on them as if they were lawyers in other contexts. I think in this specific case, it might be possible to prosecute on conspiracy charges (but IANAL) because of the OLC's unique role and mandate within the executive branch. Note that if such was allowed to go forward, it would probably be quite limited to bad-faith abuses of power from offices which are trusted to give good faith advice to the various branches of the government.

Remember that, until a court contracts them, the executive branch is required to see OLC opinions as controlling on matters of law. In this regard they have a parajudicial role and are not mere employees of those we elect.

If Yoo's memo had persuasive value only, I would agree that it shouldn't be subject to prosecution, but when the goal of writing the memo is to aid and abet criminal activity, this makes him an accessory in a way that lawyers even in other branches of the government would not be.
4.24.2009 7:22pm
einhverfr (mail) (www):

On the other hand lawyers are also professionals whose assertions about the law can be relied on by non-experts.


I wouldn't rely on a lawyer's assertion about the law without doing my own reading first and asking hard questions. After all, it is my neck on the line, not his!

However, the OLC's role is different. The executive branch is bound to treat the OLC's opinions as controlling in matters of law unless and until a court contradicts them. This is why I call them "parajudicial." In this unique role, giving REALLY BAD legal advice in order to facilitate illegal activity would seem to be arguably conspiracy.
4.24.2009 7:28pm

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